Evans v. Fenty ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JOY EVANS, et al., )
)
Plaintiffs, )
)
UNITED STATES OF AMERICA, )
)
Plaintiff-Intervenor, ) Civil Action No. 76-0293 (ESH)
)
v. )
)
ADRIAN FENTY, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
In 1976, residents of Forest Haven, then the District of Columbia’s institution for persons
with developmental disabilities, filed this class action alleging that they were receiving
constitutionally-deficient care, treatment, education, and training. In 1978, the Court entered a
consent decree pursuant to which defendants agreed that plaintiffs’ constitutional rights had been
violated and that they would take certain actions to remedy those violations.1 A series of consent
orders and remedial plans followed in which defendants admitted that they were still violating
class members’ constitutional rights and agreed to take additional actions to remedy those
constitutional violations. The last such consent order and remedial plan was entered into in
1
Plaintiffs are a class of former residents of Forest Haven. As of December 2009, there
were 600 class members (see Court Monitor Report at 2, Dec. 10, 2009); the original class has
decreased due to the deaths of class members. The sole remaining defendants are the District of
Columbia (“the District”) and the Mayor Adrian Fenty (collectively “the District” or
“defendants”). The United States is also a party, having been permitted to intervene as a plaintiff
in January 1977.
2001, when the parties jointly agreed to a Plan for Compliance, pursuant to which defendants
could demonstrate compliance with the Court’s orders and terminate the litigation.
In 2006, plaintiffs filed a motion to find defendants in noncompliance and to appoint a
receiver. On March 30, 2007, the Court granted that motion in part, concluding, based on
extensive factual findings, that there had been “systemic, continuous, and serious noncompliance
with many of the Court’s Orders.” Evans v. Fenty, 480 F. Supp. 2d 280, 325 (D.D.C. 2007)
(“March 2007 Liability Opinion”). With respect to remedy, the Court asked the Special Masters
to assist by making findings and recommendations to the Court that address, inter alia, “the
current status of defendants’ compliance, what are the available options for curing the identified
deficiencies, and whether a receivership is the most effective and efficient remedy available to
the Court.” Id. at 326.
Now before the Court is the Special Masters’ Report and Recommendation, which
concludes that, as of December 2008, defendants were still in noncompliance with the Court’s
orders and recommends the appointment of an “Independent Compliance Administrator” to bring
defendants into compliance and to end to this litigation. (Special Masters’ Report and
Recommendation Regarding A Remedy For Defendants’ Noncompliance With Court Orders at
128, Aug. 14, 2009 [“2009 Special Masters’ Report”].) Defendants have filed limited objections
to the report and oppose the imposition of the proposed remedy;2 plaintiffs have no objections to
2
However, on March 29, 2010 – only a matter of days before the issuance of this
Memorandum Opinion – defendants, having rebuffed all recent efforts to settle this matter and
having resisted offering any alternatives to the Special Masters’ proposed remedies unless the
remedy promised the swift cessation of Court supervision, filed a proposed alternate remedy for
ending this litigation. (See Defs.’ Mot. for Consideration of Alternative to Appointment of
Independent Compliance Administrator and for Entry of Exit Plan, March 29, 2010 [“Defs.’
Mot. for Alternate Remedy”].) Obviously, there has been insufficient time for plaintiffs to
2
the report and ask that the Court adopt the findings of the Special Masters and their
recommended remedy. Also before the Court is a motion the District filed, after the Special
Masters concluded their proceedings in January 2009, to vacate all consent orders and to dismiss
the entire case. For the reasons stated herein, defendants’ motion to vacate and dismiss will be
denied. The Court will address, in a future memorandum opinion and order, defendants’
objections to the Special Masters’ Report and Recommendations.
BACKGROUND
The lengthy procedural history of this litigation prior to March 30, 2007, will not be
repeated here, as it was fully summarized in the Memorandum Opinion filed on that date. See
Evans, 480 F. Supp. 2d at 281. Certain events, however, are relevant to defendants’ pending
motions and will be briefly noted below, followed by a more detailed summary of the facts and
procedural history that post-date that decision.3
I. KEY EVENTS PRIOR TO THE MARCH 30, 2007 LIABILITY OPINION
A. 1978 Final Judgment and Order
On June 14, 1978, the Court4 entered a “Final Judgment and Order” providing for
permanent injunctive relief. Evans v. Washington, 459 F. Supp. 483 (D.D.C. 1978) (“1978
respond to this proposal, which, if nothing else, as a matter of fairness, should have been
submitted during the remedy phase of this litigation so that the parties, the Special Masters, and
the Court could have had some chance to address defendants’ new 17-page plan, which, on its
face, appears to dramatically depart from the definition of outcomes and measurement of success
that were agreed to by the parties when they entered into the 2001 Plan.
3
Although the Court will address the Special Masters’ Report and Recommendation in a
separate memorandum opinion and order, many of the relevant facts will be included here as
they are also relevant to the pending motion.
4
The Honorable John H. Pratt presided over this case from its inception until his death in
August 1995.
3
Consent Order”). The 1978 Consent Order was premised on the recognition, which was
consented to by the parties, that plaintiffs had federal constitutional rights under the due process
clause of the Fifth Amendment “to be kept free from harm” and “to receive habilitative care and
treatment in the alternative least restrictive of individual liberty” and that “violations of [those]
federal constitutional rights . . . have occurred.” Id. at 484. To remedy those violations, the
1978 Consent Order required defendants and their successors to take a number of specific
actions, see id. at 484-90, that, loosely classified, fell into three categories: health care, safety,
and welfare/habilitation. Defendants “consented to the entry of [the 1978 Consent Order] so as
to assure protection of the rights of plaintiffs.” Id. at 484.
B. 1981 Consent Order
In 1981, plaintiffs and plaintiff-intervenor filed motions for contempt, based on
defendants’ noncompliance with the 1978 Consent Order. Those motions led to the entry of a
second Consent Order, which supplemented defendants’ obligations under the 1978 Consent
Order with a list of agreed-upon “measures necessary to the implementation of this Court’s
Order of June 14, 1978.” (Consent Order at 1, June 25, 1981 [“1981 Consent Order”].) The
1981 Consent Order did not revisit the legal conclusions of the 1978 Consent Order nor did it
“release defendants from their obligations” thereunder. (Id. at 10.) Rather, the parties came to
an agreement that defendants needed to take additional measures to assure protection of
plaintiffs’ constitutional rights. The agreed-upon measures supplemented defendants’
obligations in each area addressed by the 1978 Consent Order – health, safety and
welfare/habilitation. (Id. at 1-10.)
4
C. 1982 Supreme Court Decision (Youngberg v. Romeo)
In 1982, the Supreme Court decided Youngberg v. Romeo, 457 U.S. 307 (1982),
addressing for the first time the constitutional rights of an individual who had been involuntarily
committed to a state institution for the mentally retarded. As discussed infra, defendants’ motion
to vacate is based in part on the Youngberg decision and defendants’ contention, made for the
first time in the 28 years since Youngberg was decided, that Youngberg changed the law and
established that the 1978 Consent Order rested on “extraconstitutional” rights.
D. 1983 Consent Order
In 1982, plaintiffs and plaintiff-intervenor again filed motions for contempt, which led to
the entry of a third Consent Order. (Consent Order, Feb. 8, 1983 [“1983 Consent Order”]). The
1983 Consent Order similarly did not revisit the legal conclusions of the 1978 Consent Order nor
did it release defendants from their obligations under prior orders; it merely added to those
obligations “to assist in the implementation of those orders.” (Id. at 14-15.) Again, the agreed-
upon measures supplemented defendants’ obligations in each area addressed by the 1978
Consent Order – health, safety and welfare/habilitation. (Id. at 2-14.)
E. 1990 Contempt Order
In 1989, plaintiffs and plaintiff-intervenor again filed motions for contempt. In 1990, the
Court issued an Order holding the District in civil contempt based on its “consistent and
continuing violation of the three Consent Orders [of 1978, 1981 and 1983].” Evans, 480 F.
Supp. 2d at 284 (quoting Order, Jan. 30, 1990 [“Jan. 1990 Contempt Order”].) After a sanctions
hearing, the Court issued an Order that, inter alia, required defendants to complete the
outplacement of the 233 plaintiffs remaining at Forest Haven by September 30, 1991. Id. (citing
5
Order, Apr. 9, 1990 [“Apr. 1990 Contempt Order”]). By October 1991, all plaintiffs had been
moved from Forest Haven and the institution was closed.
F. 1995 Contempt Order, Appointment of Special Master, 1996 Remedial Plan
In 1995, four years after the closure of Forest Haven, plaintiff and plaintiff-intervenor
filed motions for contempt, for remedial sanctions and for appointment of a Special Master.
After two hearings, the Court again found the District to be in contempt based on “clear and
convincing evidence, including defendants’ conceded violations, that the District is not in
compliance with the consent orders in this case . . . .” (Findings of Fact & Conclusions of Law
at 7, Oct. 11, 1995 [“1995 Contempt Order”].) In its decision, the Court5 observed that as of
1995, it had “entered numerous orders, including consent orders between the parties, to
safeguard the rights of class members and ensure their adequate and appropriate habilitation.”
(Id. at 1.) The Court further noted that “[d]efendants admit that the District has a continuing
responsibility to provide the class members with habilitation in accordance with their needs” and
“admit that they also are required to provide adequate medical care, psychological care, day
programming, community residential placements and other support systems as set forth in the
class members’ [individual habilitation plans].” (Id. at 5-6 (emphasis added).) The Court
proceeded to find the District in contempt because it (1) was delinquent in ensuring timely
payment of providers, in violation of the 1983 Consent Order; (2) permitted inadequate case
manager ratios, in violation of the 1983 Consent Order; and (3) offered inadequate “community
living arrangements” and “community-based day programs and services as are necessary to
5
The case was reassigned to the Honorable Stanley S. Harris upon Judge Pratt’s death in
1995.
6
provide them with minimally adequate habilitation,” in violation of the 1978 Consent Order. (Id.
at 7-8.)
The Court further found that defendants’ “history of noncompliance, compounded by the
complicated and factually elusive nature of the matters under consideration,” required the
appointment of a “Special Master” pursuant to Federal Rule of Civil Procedure 53 to “evaluate
and ensure defendants’ compliance with the Court’s Orders and Consent Decrees . . . and to
recommend remedies for any deficiencies in defendants’ compliance with the Orders.” (Order of
Reference at 2, Oct. 11, 1995 [“1995 Reference Order”].)6
In August 1996, the Court, based on a Report and Recommendation from the Special
Master, adopted a “Remedial Plan,” designed “to enable defendants to come into compliance
with the terms of this Court’s multiple Consent Orders” and to establish the conditions by which
defendants could purge their civil contempt. Evans v. Barry, No. 76-CV-293, 1996 WL 451054,
at *1-*2 (D.D.C. Aug. 2, 1996) (“1996 Order & Remedial Plan”). In adopting the Remedial
Plan, the Court observed that
[d]efendants have, for over two years, chronically and unapologetically violated
the terms of nearly every aspect of this Court’s multiple Consent Orders.
Defendants’ unrelenting contempt of this Court’s orders, and their seeming
inability to bring themselves in compliance therewith, have created chaos for the
care providers vested with day-to-day responsibility for the members of this
plaintiff class. The plaintiffs comprising this class, as defendants well know, are
ill-equipped to adjust to or defend against the city’s failure to assist their care
providers in giving them the care and treatment they desperately need.
Id. at *2. The Court also warned defendants that:
the point has been reached beyond which this Court will not tolerate further and
continuing incidences of contempt by defendants. Any further noncompliance
6
The Court appointed Margaret G. Farrell to serve as Special Master.
7
with this Court’s longstanding Consent Orders, and noncompliance with the
Remedial Plan issued this date, must be expected by defendants to result in
serious consequences.
Id. The remedial plan concerned defendants’ obligations in each area addressed by the 1978
Consent Order – health, safety and welfare/habilitation. Id. at *3-*8
G. 1999 Sanctions Order
In April 1997, less than a year after the Court adopted the 1996 Remedial Plan, plaintiffs
moved for sanctions based on the District’s admitted failure to pay providers within 30 days, as
required under that Plan. In February 1999, the Court granted the motion and imposed a $5
million fine on defendants.7 Evans v. Williams, 35 F. Supp. 2d 88 (D.D.C. 1999). As part of that
decision, the Court modified the 1996 Remedial Plan to order the Special Master to work with
the parties to “develop and recommend to the Court a plan for the conclusion of the [litigation]”
and the termination of the Court’s jurisdiction in a manner that would ensure that plaintiffs’
interests would continue to be protected. Id. at 97. As envisioned by the Court, the plan would
include “recommended findings of fact and conclusions of law regarding the following topics”:
a. Goals. A summary and articulation of the goals of this lawsuit as reflected in
the 1978 and 1983 Consent Orders, the 1996 Remedial Plan, and all other
Court-ordered obligations (hereafter collectively “Court-ordered requirements”).
b. Current compliance. An evaluation of existing programs to determine the
extent of defendants’ compliance with requirements for the protection of the
health and safety of the plaintiff class and their effectiveness in meeting the goals
described in subparagraph a, including but not limited to the provision of
necessary medical and other health services and the compliance of private
vendors with District of Columbia licensing and payment requirements governing
community residence facilities, intermediate care facilities, foster care, day
7
The imposition of $5 million in contempt fines was reversed by the D.C. Circuit on the
ground that the fines amounted to a criminal sanction that could not be imposed without a
criminal trial. Evans v. Williams, 206 F.3d 1292 (D.C. Cir. 2000).
8
treatment programs, day programs, employment programs, representative
payment and guardianship.
c. Adequate habilitation. The extent of defendants’ compliance with
Court-ordered requirements for the provision of adequate habilitation in the least
restrictive setting and their effectiveness (strengths and weaknesses) in meeting
the goals described in subparagraph a, including individual habilitation planning,
individual financial planning, case management, appropriate residential services,
adequate habilitation services, and the safeguarding of client funds.
d. Payment of providers. The extent of defendants’ compliance with
Court-ordered requirements for the timely payment of private providers who
provide the plaintiff class with appropriate residential services, day treatment
programs, vocational and supported employment services, day programs, medical,
mental health, dental, and other services required by the Court.
e. Quality assurance. The quality assurance methods to be developed and
implemented by defendants to monitor continually the performance of public and
private providers of service in meeting the goals of the suit.
f. Standards and compliance measurement. The standards, including outcome
standards to be developed and implemented by defendants, that should be used to
determine defendants’ continued compliance with Court-ordered requirements,
and the way in which compliance with such standards should be measured.
g. Substantial compliance standards. The degree of compliance that should be
required with each of the standards recommended.
h. Permanent monitoring. The steps necessary to establish permanent, objective,
efficient, and effective post-termination monitoring of the programs serving class
members by independent entities (for example, private accreditation services and
independent monitoring bodies).
I. Individual and community advocacy. The steps necessary to coordinate
existing mechanisms and to develop needed mechanisms for the advocacy of the
interests of class members, on a[n] individual and community-wide basis, in
compliance with Court-ordered requirements, including but not limited to the use
of court-appointed attorneys, guardianships, and medical decision-making
procedures for class members.
Id. at 97-98.
H. Appointment of Independent Court Monitor
9
In November 2000, the Court entered an Order granting the parties’ joint motion for the
appointment of an independent Court Monitor. (Order Regarding the Appointment of an
Independent Court Monitor, Nov. 21, 2000.) The Order specified that the duties of the Court
Monitor were to include observing, monitoring, reporting findings, and making
recommendations to the parties, the Special Master, and the Court regarding implementation of
the Court’s Orders, and to submit quarterly reports on defendants’ “compliance” with the Court’s
Orders. (Id. at 2-5.) The Order also provided that the “findings, recommendations and reports of
the Court Monitor . . . may be introduced as evidence when relevant and admissible in
accordance with the Federal Rules of Evidence.” (Id. at 5.) In order to perform these duties, the
Monitor was granted broad access “to the persons, residences, facilities, buildings, programs,
services, documents, records, personnel and materials the Monitor deems necessary or
appropriate in performing [her duties].” (Id. at 4.)8
I. 2001 Opinion and Order: Joint Stipulated Findings of Fact; Plan for
Compliance; Consent Order and Settlement Agreement
In 2001, after “lengthy negotiations” – almost two years of work by the Special Master,
the parties, and an expert to the Special Master – the parties came to a series of agreements that
“set forth a careful and detailed blueprint for achieving compliance with the Court’s Orders, for
the development of permanent and independent mechanisms to safeguard the rights of class
members, and for the phased withdrawal of judicial oversight of the District of Columbia’s
mental retardation system as compliance with the Court Orders [wa]s achieved.” Evans v.
8
On January 19, 2001, Dr. Jane Haddad was appointed as the first Independent Court
Monitor. After her resignation, effective February 10, 2004, the Court appointed, with the
concurrence of the parties, Elizabeth Jones as the Court Monitor. Ms. Jones has continued to
serve admirably in that capacity and has been of great assistance to the Court and to the parties.
10
Williams, 139 F. Supp. 2d 79, 81 (D.D.C. 2001) (“2001 Consent Order”). Upon consideration of
these agreements, the Court, on March 30, 2001, (1) adopted the Parties’ Joint Stipulated
Findings of Fact, id. at 96-107;9 (2) approved the 2001 Plan for Compliance and Conclusion of
Evans v. Williams, id. at 85 (“2001 Plan”);10 and (3) entered a Consent Order, with a Settlement
Agreement attached thereto. Id. at 85-96. Two aspects of these agreements remain critically
important today: the 2001 Plan to achieve compliance and the creation of the Quality Trust in
exchange for plaintiffs’ waiver of claims on noncompliance.
1. 2001 Compliance Plan
The 2001 Plan started from the premise “that there is already in place a declaratory
judgment and permanent injunction recognizing a federal constitutional right to receive
9
As previously described by the Court, the joint stipulated findings of fact:
painted a bleak picture as to defendants’ record of noncompliance. The findings
acknowledged that there had been a “serious breakdown” in the District’s system
of support for individuals with developmental disabilities and that the system,
which had suffered from years of neglect and mismanagement, “urgently need[ed]
to be fixed.” Evans, 139 F. Supp. 2d at 96-97; see also, e.g., id. at 98 (noting that
District’s mental retardation and developmental delivery system was “broken”
and needed to be “redefined and rebuilt”). The findings noted that defendants’
compliance with the prior Court Orders had deteriorated following the closure of
Forest Haven in 1991 and that defendants were not complying with many of the
requirements of those Orders. Id. at 98. The findings also identified numerous
“fundamental problems,” including problems with respect to staffing, staff
training, and monitoring; management; reporting of and response to unusual
incidents; safeguarding of class members’ funds; the budgeting process; and the
District’s Medicaid Home and Community-Based Services waiver. See id. at
98-107.
Evans, 480 F. Supp. 2d at 286-87.
10
Clarence Sundram was the expert to the Special Master who “conceived, shaped, and
drafted significantly” the 2001 Plan. (2001 Plan at 5 n.1). He was appointed as a co-Special
Master on January 30, 2001. (Order, Jan. 30, 2001.)
11
individualized habilitative care and treatment in the least separate, most integrated, and least
restrictive settings, and to be kept free from harm.” (2001 Plan at 6.) The Plan then identified
(as the Court’s 1999 Order had requested) the agreed-upon “goals” of the existing Court orders.
According to the Plan, the parties agreed that existing Court Orders embodied eight goals:
(1) Appropriate individual habilitation in the community in the least separate,
most integrated, and least restrictive environment;
(2) Protection from harm;
(3) Safeguarding consumers’ personal possessions;
(4) Monitoring the service system;
(5) Advocacy for consumers;
(6) Adequate budget;
(7) Timely payment of vendors; and
(8) Essential systemic conditions.
Evans, 139 F. Supp. 2d at 81.11 For each goal (or subgoal), the Plan identified the “relevant
Court Orders,” the “specific tasks that must be performed to implement those Orders,” the “time
frames within which the tasks must be performed,” the “specific outcome criteria for measuring
compliance,” the “standard of compliance,” and the “methods by which evidence will be
collected and evaluated to assess compliance.” Id. at 81-82.
The Court approved the 2001 Plan “as, in effect, a statement of the conditions for the
expected vacating of the Court’s relevant prior Orders.” Id. at 85. It was anticipated that
[w]hile the Plan is not intended to be an independently enforceable document, the
11
The Court’s order and opinion included extensive factual findings documenting the
District’s failure to meet each of the goals. Id. at 97-107.
12
parties do intend that there will be accountability for its implementation. The
Plan requires periodic progress reports to the Special Master on its
implementation and calls for status conferences with the Court to be scheduled at
least bimonthly. The parties agree that if the Court finds that defendants have
satisfied the outcome criteria set forth in the Plan, they also will be in compliance
with the related Court Orders. Any failure of defendants to implement the tasks
identified in the Plan so as to meet the requirements of the related Court Orders
would be evidence of noncompliance with those Orders. The Plan provides that
until the existing Court Orders are vacated, plaintiffs may seek appropriate
judicial relief, including requesting orders requiring compliance with the Order(s)
underlying the objectives of the Plan.
Id. at 83.
2. Creation of the Quality Trust
The Consent Order and attached Settlement Agreement provided that, in exchange for the
plaintiffs waiving “any and all claims for past violations of the Court’s Orders,” the District
would “endow and annually fund . . . a durable, independent, nonprofit organization that will
monitor and advance the individual and collective interests of people with developmental
disabilities in the District of Columbia’s service delivery system.” Id. at 86. Defendants agreed
to fund the organization, denominated the Quality Trust, with a total of $31.5 million over eleven
years.12 Ultimately, the goal was for the Quality Trust to be “an external monitoring body to
permanently protect the interests of the class members once this case ends.” Id. at 83.
***
The 2001 agreements, which the Court accepted and adopted, contemplated that as
defendants satisfied the outcome criteria in the 2001 Plan for particular groups of Court Orders,
they would move the Court to have those Orders vacated and dismissed with the ultimate goal
12
Of that amount, Quality Trust estimates that the District still has $5 million left to
contribute. (Hr’g Tr. at 138, Dec. 17, 2009 [“12/17/09 Tr.”].)
13
that, over time, defendants would
implement all of the required actions and meet the specified outcome criteria in
order to successfully move the Court to vacate and dismiss the related Court
Orders, except the declaratory judgment on the constitutional rights of the
consumers to receive individualized habilitation in the least separate, most
integrated and least restrictive environment and to be protected from harm.
(2001 Plan at 9-10 (emphasis added).) Once the Court orders were vacated and dismissed, the
plaintiffs agreed that they would not “seek recourse to the federal court to litigate individual
violations of rights in this case pursuant to the declaratory judgment which will remain unless:
(1) there are systemic violations of the declaratory judgment; or (2) legal remedies are
unavailable in Superior Court (e.g., due to repeal of the statutes); or (3) there is a failure to
adequately fund the Quality Trust pursuant to the Consent Order dated January 19, 2001.” (Id.)
Since 2001, however, defendants have not invoked the procedures set forth in the 2001
Plan, to which they agreed, to vacate any Court Orders based on their implementation of the
necessary tasks and satisfaction of the specified outcome criteria.13 Accordingly, the Court
Orders “continue to remain enforceable in federal court.” (Id.) Moreover, even though the 2001
Plan itself was “not intended to be an enforceable document,” the parties agreed that plaintiffs
“have a great interest in ensuring that the agreed upon actions identified in this Plan are in fact
implemented effectively and in a timely manner by defendants to secure the benefits and
protections provided for by the Court Orders,” and provided, therefore, that “in the event that
defendants do not implement the provisions of this Plan effectively and on a timely basis,
13
As noted above (see supra note 2), defendants have now made half-hearted reference to
a limited number of orders that they believe should be vacated (Mem. in Supp. of Defs.’ Mot. for
Alternate Remedy at 3 [“Defs.’ Mem. re Alternate Remedy”]), but prior to this, defendants
steadfastly maintained that modification was not realistic; instead, all orders must be vacated and
the case dismissed. (See infra note 34.)
14
plaintiffs and plaintiff-intervenor retain the right to seek appropriate judicial relief, based on this
evidence of noncompliance with the Court Orders, including Orders requiring specific
performance of the Plan.” (Id.)
J. 2004 Order
In 2004, after several years of receiving discouraging monitor reports on the
implementation of the 2001 Plan, this Court14 issued an order to address the “need for greater
coordination among District of Columbia agencies which have responsibilities for actions that
are necessary to achieve compliance with the 2001 Plan.” (Order at 1, Jan. 21, 2004 [“2004
Coordination Order”].) As described therein, the parties had met with the Court on December
12, 2003, and agreed that “the current lack of such coordination has impeded the timely
completion of necessary tasks identified in the 2001 Plan.” (Id. at 1-2.) The 2004 Order
reiterated that the District remained subject to the Court’s previous orders, which were issued “to
effectuate the rights of class members to adequate habilitation in a manner least restrictive of
their liberty” and that the purpose of the 2001 Plan was to require defendants to take certain
actions to achieve compliance with those orders. (Id. at 1.) The Order required, inter alia, that
the Mayor appoint a Deputy Mayor or other senior official “to be responsible for the day-to-day
efforts of District of Columbia agencies to achieve compliance with this Court’s orders and the
2001 Plan.” (Id. at 2.) That individual was to “have the necessary authority to supervise and
direct the activities of” and “coordinate the efforts of all District of Columbia agencies” as
necessary to “carry out their obligations under the 2001 Plan and previous orders of this Court,”
14
Shortly after the 2001 Plan was approved, Judge Harris retired and this case was
reassigned to the undersigned.
15
and was to “cooperate with and report periodically to the Special Masters and Court Monitor on
defendants’ progress,” and “appear before this Court at each status conference and report to the
Court on behalf of defendants regarding the status of defendants’ compliance with the 2001 Plan
and orders of this Court.” (Id. at 3.)15
II. MOTION FOR RECEIVERSHIP: LIABILITY PHASE
In May 2006, plaintiffs filed a motion asking the Court to find defendants in
noncompliance with the outstanding Court Orders and to place the District’s Mental Retardation
and Developmental Disabilities Administration (“MRDDA”) into receivership.16 The Court
bifurcated proceedings into a “liability” and a “remedy” phase. Evans, 480 F. Supp. 2d at 291(“March 2007 Liability Opinion”).
While the liability phase was ongoing, several notable events occurred. On December
20, 2006, the “Developmental Disabilities Services Agency,” later renamed the “Department on
Disability Services,” was established by emergency legislation as a separate Cabinet-level
agency to serve consumers formerly served by the MRDDA, including the Evans class members.
Developmental Disabilities Services Management Reform Emergency Amendment Act of 2006,
§§ 103, 105(1), (2). In January 2007, Adrian Fenty took office as Mayor for the District of
Columbia. On February 5, 2007, defendants asked the Court to delay its liability ruling in light
of the new administration’s “commitment to DDS and its consumers” and its newly adopted
15
Since January 2004, several different individuals have served in this capacity.
Presently, the Mayor’s appointee is Peter Nickles, the Attorney General for the District of
Columbia. But see infra pp. 30-31.
16
The United States, as plaintiff-intervenor, also filed a motion for an order to show cause
why defendants should not be held in contempt. The Court denied that motion on March 30,
2007. (Order, Mar. 30, 2007.)
16
“Systems Improvement Plan” in order “to allow sufficient time for the DDS to appropriately
address the continuing concerns of the Court, the Monitor, the Department of Justice, and
plaintiffs.” (Defs.’ Notice of Filing of Supplemental Information in Resp. to the Ct. Monitor’s
Quarterly Report at 10, Feb. 5, 2007.) In making its request, the District indicated that it was
“cognizant that much remains to be done to bring DDS into compliance with outstanding court
orders and the 2001 Plan,” but promised the Court that the “Fenty Administration is fully
committed to the success of the new agency, the delivery of improved services and care to the
consumers served by the agency, and compliance with the 2001 Plan.” (Id. at 8.) At a status
hearing the next day, the Court rejected this request and indicated that it intended to issue its
liability ruling based on the record as of November 29, 2006, when the Court Monitor had filed
her supplemental report as requested by the Court, but that information about improvements and
accomplishments after that date would be considered in any remedy phase. (Hr’g Tr. at 23-24,
Feb. 6, 2007.)
On March 30, 2007, the Court issued its liability ruling, concluding that plaintiffs had
met their burden to show that there had been “systemic, continuous, and serious noncompliance”
with the Court’s prior Orders. Evans, 480 F. Supp. 2d at 325.
A. Findings: Health, Safety and Welfare
The Court organized its findings in terms of these three broad subject areas: health, safety
and welfare. Based on a record that closed in November 2006, the Court found that
plaintiffs have demonstrated, by clear and convincing evidence, that defendants
have failed to comply with existing Court Orders in the core areas of health,
safety, and welfare. These failures are systemic in that they affect many class
members served by a cross-section of providers and occur throughout defendants’
service delivery system. They are serious in that they concern matters that are
integral to class members’ health, safety, and well-being. And, they are
17
continuous in that the same issues of noncompliance have persisted year after
year.
Id. at 298. A brief summary of the Court’s findings follows.
In the category of “health,” the Court found that:
defendants have failed in many significant respects to accomplish the tasks and to
achieve the outcome criteria in the 2001 Plan that relate to the Court’s Orders
regarding the provision of health care and to comply with the terms of the Orders
themselves. Defendants’ deficient performance with respect to these measures
provides ample evidence that defendants have failed to comply with the Court’s
Order that “[a] program of medical, dental and health related services which
provides accessibility, quality and continuity of care is required,” as well as with
Court Orders requiring development of habilitation plans and programs that
incorporate all services needed by class members and implementation of
appropriate training programs for all staff.
Id. at 305 (citations omitted).
In the category of “safety,” the Court found that:
defendants have failed in many significant respects to accomplish the tasks and
outcome criteria associated with the Court’s Orders relating to class member
safety and to comply with the terms of the Orders themselves. Defendants’
performance in the areas discussed above provides ample evidence that
defendants have failed to comply with the Court’s Orders prohibiting all acts of
“physical or psychological abuse, neglect or mistreatment” of class members,
requiring the prompt reporting and investigation of all such incidents and the
prompt dissemination of the reports of such investigations to the Court Monitor
and other interested parties, requiring the development and implementation of
appropriate training programs for all staff, including staff assigned to residential
settings, and requiring defendants to provide necessary monitoring mechanisms.
Id. at 313-314 (citations omitted).
Finally, in the category of “welfare,” the Court found that defendants were not in
compliance in several respects. First, in terms of the “least restrictive, most integrated setting
requirement,” the Court found that:
defendants have not complied with the Court’s 1978 Order that all class members
be provided with “community living arrangements suitable to each, together with
18
such community-based day programs and services as are necessary to provide
them within minimally adequate habilitation . . . in the least separate, most
integrated and least restrictive community settings.”
Id. at 319 (quoting Evans, 459 F. Supp. at 484). The Court also found serious problems in the
areas of implementing “individual support plans” (“ISPs”) and thus in “ensuring that class
members actually receive the services and supports they require,” id. at 320, and a failure to
comply with orders regarding “adaptive equipment.” Id. at 321. Finally, the Court found
problems in the area of case management, concluding that:
defendants “fail[ed] to ensure that case managers complete the required number
of visits and that they take appropriate action when a class member has been the
subject of a serious incident”; “[f]ail[ed] to ensure that case managers are
properly trained before receiving caseloads”; and that case managers “fail[ed] to
ensure that ISPs are fully implemented.”
Id. at 324.
The Court summarized its findings as follows:
As a result of these failings, class members continue to be placed in inappropriate
and overly restrictive residential and day programs, rather than in the least
restrictive, most integrated settings. Provider and MRDDA staff, including case
managers, are not adequately trained, and case managers do not visit class
members with the required frequency and do not adequately address deficiencies
in class members’ care. In many instances, class members do not receive the
needed services and supports that have been identified in their ISPs. Protocols
necessary to protect class members’ health and safety, such as feeding,
positioning, and behavioral plans, are routinely not followed. Health risks are not
adequately assessed and monitored for many class members, and
recommendations by health care providers are not implemented in a timely
manner. While incidents of abuse and neglect of class members persist,
defendants have failed to ensure that these and other serious incidents, including
class member deaths, are investigated in a timely manner, that the results of such
investigations are shared with providers, and that recommended corrective and
preventive actions are implemented. Defendants have also compromised the
monitoring process by altering death investigation reports.
Id. at 324-25. These findings were the basis for the Court’s ultimate conclusion that defendants’
19
noncompliance with Court orders had been “systemic, continuous and serious.” Id. at 325.
B. Remedy
As for the remedy of receivership sought by the plaintiffs, the Court observed:
Although it is clear based on the tortured history of this case that there have been
repeated failures to comply with the Court’s Orders, this determination is in no
way determinative of the question whether plaintiffs are correct in their argument
that a receivership should be imposed.
Id. at 326. Rather, receivership is a “remedy of last resort,” that “should be undertaken only
when absolutely necessary.” Id. (quoting District of Columbia v. Jerry M., 738 A.2d 1206,
1213 (D.C. 1999)).
In light of the complexity of this inquiry, and the fact that “recent developments . . . are
encouraging and will be highly relevant to the remedial phase of this action,” the Court
determined that it would “enlist the assistance of the Special Masters, who have ably served in
this capacity for many years, to make findings and recommendations to the Court that address,
inter alia, the current status of defendants’ compliance, what are the available options for curing
the identified deficiencies, and whether a receivership is the most effective and efficient remedy
available to the Court.” Id. at 326. The Court instructed that the “determination whether other
remedies are inadequate and whether receivership remains the only viable option to effectuate
compliance with court orders is to be guided by a number of factors, including
(1) “whether there were repeated failures to comply with the Court’s orders”; (2)
whether further efforts to secure compliance would only lead to “confrontation
and delay”; (3) whether leadership is available which can “turn the tide within a
reasonable time period”; (4) “whether there was bad faith”; (5) “whether
resources are being wasted”; and, (6) “whether a receiver can provide a quick and
efficient remedy.”
Id. (quoting Jerry M., 738 A.2d at 1213 (quoting Dixon v. Barry, 967 F. Supp. 535, 550 (D.D.C.
20
1997))). The Court’s final observation was that “the daunting task of finding ways to remedy the
problems still remains. In this regard, the Court expects the parties to continue their prior efforts
to resolve this matter so that the plight of the class members can be improved as expeditiously as
possible, and they will not have to continue to await the outcome of this painfully lengthy and
cumbersome litigation.” Id. at 327.
III. MOTION FOR RECEIVERSHIP: REMEDY PHASE
A. Supplemental Order of Reference to the Special Masters
Following the issuance of the March 30, 2007 decision, the parties conferred and jointly
agreed on a supplemental order of reference to the Special Masters. (Supp. Order of Reference,
May 3, 2007 [“2007 Reference Order”].) The 2007 Reference Order provided, inter alia, as
follows:
Both Margaret G. Farrell and Clarence J. Sundram have served as Special Masters
in this case for many years under prior Orders of Reference. The Court finds that
it is justified and necessary to continue their appointment to assist the Court for as
long as the Court deems necessary in this matter.
(Id. at 1.) It further provided that:
The Masters are authorized to conduct proceedings relating to the necessity for
remedial relief, including, as needed, discovery, hearings, mediation and
settlement negotiations. At the conclusion of such proceedings, the Masters will
issue a report to the Court making recommended findings of fact, conclusions of
law and recommendations regarding appropriate remedies.
(Id. at 2.) Following the issuance of the Special Masters’ report and recommendations, the
parties were to “file objections to (or file a motion to adopt or to modify) such order, report or
recommendations.” (Id. at 4.) The parties were directed that all objections should “specifically
identify the portions of the order, or report containing proposed findings of fact, conclusions of
law and recommendations for remedial action, to which objection is made and the basis for the
21
objection.” (Id.) Finally, the Order provided that this Court would review de novo “all
objections to the Masters’ proposed findings of fact and recommendations regarding remedial
relief” and “all objections to conclusions of law made or recommended by the Masters.” (Id.)
B. September 12, 2007 Consent Order (“90-Day Order”)
After a quarterly status conference on August 9, 2007,17 the parties agreed to develop,
and the Court ultimately entered, a consent order “setting forth a limited number of concrete,
short-term goals related to retaining and increasing the number of qualified providers and
improving the health and safety of class members” that the District agreed to achieve “during the
three-month period from October 1, 2007, to December 31, 2007.” (Order at 1, Sept. 12, 2007
[“2007 90-Day Consent Order”]). Pursuant to that Order, defendants agreed to take a number of
specific actions that were focused on these two critical goals. (Id. at 2.) The Special Masters
were tasked with determining defendants’ compliance with the 2007 90-Day Consent Order,
beginning in January 2008. (Id. at 1.)
On August 18, 2008, the Special Masters filed their Report and Recommendation
regarding defendants’ compliance with the 2007 90-Day Order. (Special Masters’ Report &
Recommendation Regarding Defs.’ Compliance with the Consent Order of Sept. 12, 2007, Aug.
18, 2008 [“2008 Special Masters’ Report”].) The 2008 Special Masters’ Report concluded that
overall defendants “did not demonstrate substantial compliance with six out of the 13 provisions
of the Consent Order that they recently agreed-upon, and whose obligations they concede they
17
At the August 9, 2007 status conference, the director of DDS, Judith Heumann,
informed the Court that (1) the name of the MRDDA was changing to the Developmental
Disabilities Administration (“DDA”); and (2) that Laura Nuss would be the new deputy
overseeing the DDA. (Hr’g. Tr. at 5, Aug. 9, 2007.)
22
clearly understood.”18 Id. at 107.
C. Monitoring Compliance
At the same time it issued the 2007 90-Day Consent Order, the Court ordered the parties
to “file with the Court the agreed-upon methodology to be used by the Court Monitor to monitor
defendants’ compliance with the requirements of the 2001 Plan and the existing Court Orders by
January 10, 2008.” (Minute Order, Sept. 12, 2007). Following the issuance of this Order, the
Court Monitor circulated to the parties and the Special Masters a proposed monitoring protocol.
On November 21, 2007, defendants filed a notice stating:
By communication of November 16, 2007, faced with the expenditure of
substantial resources and time to develop the above-referenced methodology,
Defendants informed the Court Monitor that a meeting to develop a methodology
would not be needed since Defendants would not assert that conditions have so
fundamentally changed at this point that such comprehensive monitoring is
appropriate. Accordingly, Defendants expressed the view that there was no need
for the comprehensive monitoring proposed by the Court Monitor and the
significant expense attendant thereto that would be incurred.
(Defs.’ Notice Concerning Proposed Comprehensive Monitoring at 2, Nov. 21, 2007 (emphasis
added).) By May 2008, a monitoring protocol had still not been agreed upon. Just prior to the
status conference set for May 15, 2008, defendants filed a motion to stay discovery during the
remedial phase of the case, which was denied by the Court. (Hr’g Tr. at 38, May 15, 2008.) On
May 19, 2008, the Court issued a scheduling order to govern the remedy phase.
18
On September 15, 2008, defendants filed a motion for an order modifying the 2008
Special Masters’ Report to find defendants in compliance with the 2007 90-Day Consent Order.
(Defs.’ Mot. to Modify the Special Masters’ Report & Recommendation, Consistent with Defs.’
Objections, to Find Defs. in Compliance with the Consent Order of Sept. 12, 2007, at 1, Sept. 15,
2008.) On October 6, 2008, the Court held this motion in abeyance and to the extent it is
necessary to address this motion, it will be done in the Court’s opinion regarding defendants’
objections to the 2008 Special Masters’ Report and Recommendation.
23
On June 13, 2008, plaintiffs, in response to the Court’s request, filed a summary of the
remedies they were seeking. That filing set forth a range of possible remedies, “running from no
action by the Court up to court-appointed receivership over the entire Department on Disability
Services, with oversight of all District agency functions pertaining to Evans class members and
other individuals with developmental disabilities served by the defendants.” (Pls.’ Filing on
Remedies at 1, June 13, 2008.) Among these alternatives, plaintiffs endorsed the remedy of
appointing a “Special Administrator,” who would “oversee[] government agencies and functions
pertaining to class members until the District achieves substantial compliance with the Court’s
Orders,” but who would not have all the powers of a receiver. (Id. at 3.)
D. Proceedings Before the Special Masters
Following additional discovery and pretrial proceedings, the Special Masters conducted a
three-day trial on December 10-12, 2008. Direct testimony from both fact and expert witnesses
was presented by declaration or excerpts from depositions. (Special Masters’ Final Pretrial
Order at 6, Nov. 28, 2008.) All witnesses were subject to live cross-examination. (Trial Tr.,
Dec. 10, 2008; Trial Tr., Dec. 11, 2008.) Plaintiffs presented the testimony of two fact
witnesses19 and two expert witnesses.20 Defendants presented the testimony of six fact
witnesses21 and three expert witnesses.22 In addition, more than 200 exhibits were introduced
19
John M. Cook, Executive Director, L’Arche, Inc.; Thomas F. Wilds, member of
interagency rate-setting task force.
20
Martha B. Knisley; Lewis H. Spence, lecturer, Harvard School of Education and
Kennedy School of Government (remedy).
21
Laura L. Nuss, Deputy Director of the Department on Disability Services, responsible
for the Developmental Disabilities Administration; John McCarthy, Deputy Director of the
Department of Health Care Finance and District of Columbia State Medicaid Director; Kathy
Sawyer, former consultant and Interim Director, DDS, former Evans Compliance Officer
24
into evidence. Subsequently, both parties submitted Proposed Findings of Fact and Conclusions
of Law, as well as post-trial briefs. The Quality Trust for Individuals with Disabilities filed an
amicus brief in support of plaintiffs’ motion and for the appointment of a Special Administrator.
On February 9, 2009, closing arguments were heard by the Special Masters.
E. Districts’ Motions to Vacate: April 20, 2009
On April 20, 2009, shortly before the Special Masters issued a draft of their Report and
Recommendation, defendants filed a motion pursuant to Federal Rule of Civil Procedure
60(b)(5) to vacate all consent orders and dismiss the case. Defendants asserted that “[c]ontinued
federal-court oversight is no longer equitable, as there is no question that the District has
remedied the alleged constitutional and statutory violations that gave rise to the 1978 Consent
Order and its progeny” and “there is no reasonable basis for asserting that the District will revert
to violating the law if the Court’s orders are lifted.” (Defs.’ Mot. to Vacate Consent Orders and
Dismiss Action at 1, Apr. 20, 2009.) For the first time, in a litigation that has been ongoing for
more than 30 years and despite repeated promises to comply with the existing Court orders,
defendants took the position that their noncompliance was irrelevant to the question of whether
the Court should continue enforcing its orders because those orders went “beyond minimum
standards necessary to satisfy constitutional requirements.” (Id. at 3.) In a minute order filed on
May 1, 2009, the Court advised the parties that no opposition to defendants’ motion should be
(through Jan. 31, 2008) and former Interim Administrator, MRDDA; Judith Heumann, Director,
DDS; Amy Brooks, President of RCM, a provider agency; Lisa Alexander, M.D., DC HRP.
22
David L. Jackson, M.D., PhD, President, Jackson & Assocs. (2007 mortality review and
follow-up on recommendations for improvement); Nancy Thaler, Executive Director, National
Association of State Directors of Developmental Disabilities Services; and John Sumner, Ph.D
(statistical analysis).
25
filed because it intended to hold it in abeyance until it received the Special Masters’ final Report
and Recommendation.
F. Special Masters’ Report and Recommendations
On May 22, 2009, the Special Masters circulated, as required by the 2007 Supplemental
Order of Reference, a draft of their proposed findings of fact and conclusions of law for
comment. In that draft, the Special Masters “recommended that the Court’s 2004 Order be
amended to provide for a Special Compliance Officer to be jointly appointed by the Court and
the Mayor with enhanced authority to coordinate and direct the activities of the various District
agencies urgently needed to deliver constitutionally acceptable services to the plaintiff class.”
(2009 Special Masters’ Report at 4.) The draft recommended “that the Court appoint the Deputy
Director of DDS/DDA, Laura Nuss, as the Special Compliance Officer merging in one person
the legal responsibility under local law with the responsibilities and authority to be conferred by
the Court, to lead defendants’ efforts to achieve compliance with the court orders.” (Id. at 135.)
The Special Masters believed that “this least intrusive, and least expensive, remedy was most
likely . . . to achieve compliance with Court Orders.” (Id. at 4.) However, this remedy “required
the Mayor’s agreement.” (Id.) On July 6, 2009, the parties filed their comments on and
objections to the draft report. Defendants’ comments indicated that the Mayor would not agree
to the proposal to appoint a Special Compliance Officer, making that remedy “no longer a viable
one.” (Id. at 135.)
On August 14, 2009, the Special Masters filed their final Report and Recommendations,
based on the record from November 29, 2006, the close of the record for the liability phase,
through December 2008, when they closed the record before them. (Id. at 3.) As described
26
herein, the Special Masters found that “plaintiffs had proved by clear and convincing evidence
that defendants continue to be in serious noncompliance with critical provisions of outstanding
court orders” in the areas of health, safety, and welfare. (Id.) They recommended as a remedy
the appointment of an “Independent Compliance Administrator accountable only to the Court to
supervise and coordinate defendants’ serial compliance with individual court ordered obligations
so that the suit may be dismissed in three years time or less.” (Id. at 4-5).
1. Findings of Fact and Conclusions of Law
a. Health
In the area of health, the Special Masters found that defendants were noncompliant in
several significant respects. First, regarding medical care, they found that defendants had “failed
to completely perform some or all of the following duties”: “documenting significant health
problems in class members’ health management plans; monitoring implementation of health
plans; implementing recommendations put forward by class members’ physicians and medical
specialists and completing lab work and physician-ordered diagnostic tests.” (Id. at 26-27.)
Thus, they concluded:
The evidence in the record indicates that a significant portion of the plaintiff class
have health care needs that are not identified in their health plans. Furthermore,
too often needs identified in health plans are not met because health plans are not
implemented – i.e. diagnostic tests, consultations and treatments and follow up
appointments are not provided or documented in their health records.
(Id. at 31.) The Special Masters also found “ongoing and significant problems with the delivery
of timely and appropriate mental health and behavioral healthcare.” (Id. at 35.) These problems
included:
a) lack of access to sufficient psychiatric and psychological services; b) improper
professional practices that are inconsistent with professional standards; c)
27
recommended clinical therapies not being implemented; d) the failure to integrate
the use of psychotropic medications into an overall treatment plan; e) the failure
to obtain informed consent and approval from Human Rights Committees for use
of these restrictive measures; and f) the lack of monitoring of the usage and side
effects of psychotropic medications.
(Id.)23 Finally, the Special Masters found that “delays in obtaining guardianship for the
provision of informed consent for medical and dental treatment of class members . . . have
continued” (id. at 45), sometimes “for months, sometimes more than a year, after the need for a
guardian is first identified.” (Id. at 50.) As a result, treatment is delayed and class members
suffer harmful consequences. (Id. at 49-50.)
Based on these findings, the Special Masters concluded that “plaintiffs have established
by clear and convincing evidence” that defendants continue “to be in non-compliance with . . .
outstanding consent orders” with regard to (1) “class members’ health” (id. at 31); (2) “mental
and behavioral health care” (id. at 41-42); and (3) timely appointment of guardians. (Id. at 49-
50.)
b. Safety and Protection from Harm
The Special Masters found the following problems with respect to defendants’
obligations to ensure plaintiffs’ safety and protection from harm: (1) “a significant number of
untimely investigations” into “serious reportable incidents” and deaths (id. at 52-53); (2) “some
IMEU reports continue to fail to thoroughly investigate serious reportable incidents” (id. at 54);
(3) except for Level I incidents, “the investigation report format does not inquire about potential
causes and contributory factors leading to the incident under investigation” (id. at 56); (4) an
23
“About one third of the class members (228) receive psychotropic medications,” and
“305 class members have behavior support plans.” (Id. at 35.)
28
inability to “identif[y] and address[] systemic issues arising in investigations (id. at 57); (5)
“numerous instances of providers filing late incident reports or no reports at all, conducting
inadequate investigations, or failing to conduct required investigations with no recommendations
for or evidence of enforcement actions being taken in response to these deficiencies” (id. at 60);
(6) “[i]ncidents of harm . . . , including serious physical injury, physical abuse and neglect” (id.
at 60); (7) harm resulting from “delays in treatment due to problems with getting informed
consent (id. at 61); (8) “harm due to inadequate health care management” (id.); and (9) harm
resulting from problems with the District’s “transportation broker contract.” (Id. at 64).
Based on these findings, the Special Masters concluded that “while there are some
nascent signs of progress in a few areas,” there was “clear and convincing evidence that the
problems being experienced by class members in the area of safety and protection from harm are
continuing, serious and systemic.” (Id. at 67.)
c. Welfare
In terms of court orders concerning plaintiff’s “welfare,” the Special Masters found the
plaintiffs had “not sustained their burden of proving by clear and convincing evidence
non-compliance with court orders requiring residential placements in less restrictive settings”
(id. at 72); with court orders requiring that “all class members have written ISPs containing
current habilitation plans, behavioral support plans and health plans” (id. at 78); or with court
orders requiring a minimum of eight visits per year by a service coordinator/case manager. (Id.
at 82). However, they did find continuing problems in the following areas: (1) segregated day
programs with arts and crafts as the primary activity and a lack of opportunity for community
experiences (id. at 73-74); (2) supported employment (id. at 74); (3) implementation of ISPs (id.
29
at 77-79); and (4) service coordinators not ensuring that ISPs are fully implemented or following
up when they are not. (Id. at 81-84.)
Based on these findings, the Special Masters concluded that there is “clear and
convincing evidence” that defendants have “not met their obligation . . . to provide adequate
habilitation in non-residential, least restrictive, community-integrated settings” (id. at 74), or to
“[p]rovide all necessary and proper monitoring mechanisms to assure that community living
arrangements, programs and supportive community services of the necessary quantity and
quality are provided and maintained.” (Id. at 83-84).
d. Interagency Coordination
As the Special Masters noted,
[a]lthough the primary responsibility for providing timely and effective services
and supports to class members rests with DDS/DDA, the success of this enterprise
depends upon the coordinated efforts of several District agencies, including
MAA/DHCF (formerly the Medical Assistance Administration (MAA) in the
Department of Health (DOH) and now the Department of Health Care Finance
(DHCF)), through which most of the funding is provided, the Health Regulation
and Licensing Agency (HRLA) in the DOH, which is responsible for licensing
and enforcement with respect to ICFs/MR, the Office of the Inspector General,
which has investigative responsibilities for Medicaid fraud and abuse, the Office
of Attorney General which files petitions for guardianships in court, and other
agencies involved in the personnel, procurement, and budget process . . .
includ[ing] the Office of Contracts and Procurement, which has a significant role
in the contracting process.
(Id. at 84.) As described supra, the 2004 Coordination Order was aimed at improving
interagency communication coordination. The Special Masters found that despite evidence of
improvement, “[t]here has been little evidence submitted regarding specific compliance with [the
2004 Order].” (Id. at 90.) According to the Special Masters
[w]hat is missing is evidence of leadership or coordination by the Mayor’s
designee—the central point of the order—to give focus, direction and priority to
30
interagency communication and coordination, to identify planned actions of one
agency that may adversely affect the mission of another and to take proactive
steps to prevent such a consequence. In the absence of evidence of such efforts,
the interagency efforts at the staff level between agencies have not been
consistently successful, and gaps in communication and coordination have
resulted in harm to class members.
(Id. at 90.) Indeed, the Special Masters found that “[t]he evidence is that leaders in the key
agencies that have the most significant interagency relationship . . . were unaware of the existing
court order or of the responsibility of the Mayor’s designee in implementing it.” (Id. at 92.)
These findings led the Special Masters to conclude that
the current lack of awareness by key senior officials of the Order’s existence and
its requirements, coupled with the absence of evidence of regular interagency
meetings or communications with the Mayor’s designee regarding significant
initiatives, and the evidence of breakdowns in interagency coordination leading to
the problems discussed above, are all clear and convincing evidence of ongoing
noncompliance with this court order which was that this Court Order has not been
implemented as intended to remedy a long-standing problem of lack of
interagency coordination.
(Id. at 93.)
2. Remedy
The Special Masters concluded “that the plaintiffs have demonstrated by clear and
convincing evidence that there is a need for additional remedial measures ordered by the Court.”
(Id. at 133.) Having been unsuccessful in their attempt to get defendants to agree to their first
choice of remedy, and after many years of futile attempts to reach an agreement with the Fenty
Administration as to a workable remedy, the Special Masters’ final report recommended the
appointment of an “Independent Compliance Administrator” who “would be appointed by the
Court, be accountable only to the Court and would not hold an executive appointment.” (Id. at
134.) As described by the Special Masters, the Independent Compliance Administrator would
31
not have the same powers of a receiver but would
serve as the focal point for the compliance efforts of the defendants and work in
close collaboration with them, resulting in regular submissions of compliance
reports as set forth in the 2001 Plan, and phased judicial disengagement from
active supervision of the defendants’ developmental disabilities service system
within three years. The Independent Compliance Administrator is not intended to
have the powers of a receiver or to generally displace the power and authority of
agency heads or subordinate officers. Rather, the authority and role of the
Independent Compliance Administrator is limited to actions necessary to achieve
compliance with the court orders within a three year period. All District agencies
and personnel should be directed to cooperate with the Independent Compliance
Administrator. If there is a lack of cooperation, or resistance or intransigence, the
Independent Compliance Administrator should be required to report it
immediately to the Special Masters or the Court.
(Id. at 134-35.)
IV. CURRENT PROCEDURAL POSTURE
At a status conference on August 19, 2009, the Court set a briefing schedule for plaintiffs
to respond to defendants’ motion for vacatur and dismissal, combined with a timetable for filing
objections to the 2009 Special Masters’ Report. Pursuant to the Court’s order, defendants
renewed their motion to vacate the consent orders and dismiss the action and combined it with
their objections to the 2009 Special Masters’ Report. (Defs.’ Renewed Mot. to Vacate Consent
Orders and To Dismiss Action, Oct. 7, 2009 [“Defs.’ Mot. to Vacate”].) On November 6, 2009,
plaintiffs filed their opposition to that motion (combined with their endorsement of the Special
Masters’ Report and Recommendations (Pls.’ Resp. to Defs.’ Objections to the Special Masters’
Report & Recommendation, and Opp’n to their Mot. to Vacate All Prior Orders and Dismiss the
Case, Nov. 6, 2009 [“Pls.’ Opp’n”]). Plaintiff-intervenor, the United States, and the Quality
Trust, as amicus curiae, also filed oppositions to defendants’ motion. (Pl. Intervenor’s Opp’n to
Defs.’ Renewed Mot. to Vacate Consent Orders and To Dismiss Action, Nov. 6, 2009; Amicus
32
Curiae Br. of Quality Trust for Individuals with Disabilities, Inc., Nov. 11, 2009 [“Quality Trust
Opp’n”].) Defendants filed their reply on December 2, 2009. (Defs.’ Consolidated Reply in
Support of Mot. to Vacate Consent Orders and To Dismiss Action, Dec. 2, 2009.) On December
17-18, 2009, the Court heard argument on defendants’ motions to vacate and to dismiss and on
whether to adopt the 2009 Special Masters’ Report. The Court will address herein defendants’
motions and will address plaintiffs’ request that the Court adopt the 2009 Special Masters’
Report in a subsequent memorandum.
ANALYSIS
Defendants have moved under Federal Rule of Civil Procedure 60(b)(5), “at the
conclusion of a period of monitoring not to exceed three months,24 to vacate the Consent Order
entered on June 14, 1978 . . . together with all subsequent remedial orders, and to dismiss the
action.” (Defs.’ Mot. to Vacate at 1.)
Rule 60(b)(5) provides that “the court may relieve a party or its legal representative from
a final judgment, order, or proceeding” if “the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable . . . .” Fed. R. Civ. P. 60(b)(5) (emphasis added).
Defendants seek relief solely on the ground that enforcing the existing orders prospectively is
“no longer equitable.” (Defs.’ Mot. to Vacate at 4.) Conceding they are not in compliance with
existing court orders (see 12/17/09 Tr. at 14-16), defendants nonetheless contend that all court
24
Under their latest filing, defendants propose the period of court monitoring and
supervision to end at the end of 2010. (Defs.’ Mot. for Alternate Remedy at 2.). Defendants,
however, seek to have the Court accept their alternative remedy while still preserving their rights
to appeal the denial of their motion for vacatur and dismissal. (Id. at 2 & n.2.)
33
orders should be vacated because they have “remedied the alleged constitutional and statutory
violations that gave rise to the 1978 Consent Order and its progeny, and continued federal-court
oversight is therefore no longer either equitable or permissible.” (Mem. in Supp. of Defs.’ Mot.
to Vacate at 3 [“Defs.’ Mem.”] (citing Horne v. Flores, 125 S. Ct. 2579 (2009)).
A party seeking modification of a judgment or order on the ground that applying it
prospectively is no longer equitable “bears the burden of establishing that a significant change in
circumstances warrants revision of the decree.” Rufo v. Inmates of Suffolk County Jail, 502 U.S.
367, 383 (1992); Horne, 129 S. Ct. at 2593. A party seeking relief “may meet its initial burden
by showing . . . a significant change in either factual conditions or in law.” Rufo, 502 U.S. at
384 (emphasis added); Horne, 129 S. Ct. at 2593. Changed factual conditions may include
when “‘the objects of the decree have been attained.’” Horne, 129 S. Ct. at 2596 (quoting Frew
v. Hawkins, 540 U.S. 431, 442 (2004)). “To determine the merits of this claim, [a court]
‘need[s] to ascertain whether ongoing enforcement of the original order [is] supported by an
ongoing violation of . . . law.’” Id. at 2597 (citing Milliken v. Bradley, 433 U.S. 267, 282
(1977)); see also Frew, 540 U.S. at 442 (“The federal court must exercise its equitable powers to
ensure that when the objects of the decree have been attained, responsibility for discharging the
State’s obligations is returned promptly to the State and its officials.”) If the party seeking
modification or vacatur can establish that the “objective of the [district court’s] order . . . has
been achieved” and “a durable remedy has been implemented, continued enforcement of the
order is not only unnecessary, but improper.” Horne, 129 S. Ct. at 2595. In the alternative, a
significant change in law may warrant modification or vacatur of a decree “when the statutory or
decisional law has changed to make legal what the decree was designed to prevent.” Rufo, 502
34
U.S. at 388; see also Horne, 129 S. Ct. at 2595 (“[C]ourts must remain attentive to the fact that
‘federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that
does not violate [federal law] or does not flow from such a violation.’” (quoting Milliken, 433
U.S. at 282 )).
In considering a request for modification in an institutional reform case, a district court
must take a “flexible approach.” Horne, 129 S. Ct. at 2594; see also Rufo, 502 U.S. at 381; Frew,
540 U.S. at 441. “A flexible approach allows courts to ensure that ‘responsibility for discharging
the State’s obligations is returned promptly to the State and its officials’ when the circumstances
warrant.” Horne, 129 S. Ct. at 2595 (quoting Frew, 540 U.S. at 442). “If the State establishes
reason to modify the decree, the court should make the necessary changes; where it has not done
so, however, the decree should be enforced according to its terms.” Frew, 540 U.S. at 442.
Relief is warranted if the significant change “renders continued enforcement ‘detrimental to the
public interest.’” Horne, 129 S. Ct. at 2593 (quoting Rufo, 502 U.S. at 384).
Defendants contend that there has been both a significant change in law and a significant
change in factual conditions and that these changes satisfy Horne’s requirements for vacatur.
Defendants could, of course, obtain vacatur by complying with the court orders. However, they
concede they have not achieved compliance. (12/17/09 Tr. at 20-21.) Nonetheless, they argue
that the objects of the court orders have been attained because (1) the scope of the right to
habilitation recognized in the 1978 Consent Order and the many subsequent consent orders is
premised on an incorrect understanding of the law, as established by the Supreme Court’s 1982
decision in Youngberg and, therefore, those parts of the consent orders that are dependent on that
definition are “extraconstitutional,”(i.e., not based on any constitutional violation) and thus are
35
legally unenforceable; and (2) the remaining parts of the 1978 Consent Order and subsequent
consent orders impose requirements that exceed minimal constitutional standards, and thus,
under Horne, defendants are entitled to vacatur once they achieve the minimum, which they
claim to have done.
Defendants’ argument for vacatur fails because (1) Youngberg does not represent a
significant change in law (Section I(A)); (2) even if Youngberg constituted a significant change,
defendants failed to make that argument within a reasonable time after Youngberg was decided
(Section I(B)); (3) no matter how Youngberg is interpreted, it can only support a limited
modification of the consent orders (Section I(C)); (4) defendants have misinterpreted Horne
when arguing that the objectives of the consent decrees have been met because they have
satisfied the constitutional floor (Section II(A)); and (5) defendants have failed to establish that a
durable remedy is in place (Section II(B)).
I. DEFENDANTS ARE NOT ENTITLED TO VACATUR BASED ON A CHANGE
IN LAW
A. Youngberg Was Not a Significant Change in Law
According to defendants, Youngberg was a significant change in law because “[i]n its
1978 Consent Order, this Court adopted a much more expansive definition of the Fifth
Amendment right to habilitative care and treatment” than Youngberg recognizes or permits.
(Defs.’ Mem. at 16 n.13.) Specifically, defendants take issue with the portions of the 1978
Consent Order, to which they agreed, emphasized below:
Each class member has a federal constitutional right, based upon the Due Process
Clause of the Fifth Amendment, to receive habilitative care and treatment in the
alternative least restrictive of individual liberty and to be kept free from harm.
Habilitation is the process by which a resident is assisted in acquiring and
36
maintaining those life skills which enable him to cope more effectively with the
demands of his own person and of his environment and to raise the level of his
physical, mental, and social capabilities. Habilitation includes but is not limited
to[] programs of formal, structured education and training.
Habilitative care in the alternative least restrictive of individual liberty means
living as normally as possible and receiving appropriate individualized services
in the community in the least separate, most integrated and least restrictive
settings.
As used in this Order, “integrated” refers to the integration of mentally retarded
persons with nonretarded persons in the community.
(Id. (quoting 1978 Consent Order at 2 ¶ 3) (emphases added).) According to defendants, “[t]he
portions of this definition emphasized above are not required by the Fifth Amendment’s due
process clause but, rather, reach far beyond any constitutionally guaranteed minimum.” (Id. at
16-17 n.13) Defendants maintain, for the first time in over 30 years, that they “cannot now be
bound by their three-decades-old consent to the use of an overly expansive, erroneous
definition.” (Id.) Rather, they argue, “this Court should disregard the 1978 Consent Order’s
incorrect statement of the applicable standard and implement the correct standard, which the
District has more than satisfied.” (Id. at 17 n.13.)
It is well-established that a Court can modify or vacate a consent decree based on a
significant change in law. In many cases where this type of argument has been raised, it is
undisputed that the law has in fact changed, that a legal basis for the decree has evaporated, and
the only question for the Court is whether the change in the legal landscape warrants
modification (or vacatur) of the decree. See, e.g, Sys. Fed’n No. 91, Ry. Employes’ Dep’t, AFL-
CIO v. Wright, 364 U.S. 642, 652 (1961) (“The parties have no power to require of the court
continuing enforcement of rights the statute no longer gives.”); Sweeton v. Brown, 27 F.3d 1162,
1164-65 (6th Cir. 1994) (en banc) (dissolving injunction pertaining to state parole procedures
37
where subsequent controlling caselaw established that there was no federal due process interest
at stake and thus that the “legal theory and analysis upon which the consent decree was
formulated was erroneous”); Evans v. City of Chicago,10 F.3d 474, 480 (7th Cir. 1993) (en banc)
(vacating consent decree because its “continued enforcement” was “inequitable” where the
underlying “substantial claim” under federal law had evaporated); Doe v. Briley, 511 F. Supp. 2d
904, 923-26 (M.D. Tenn. 2007) (dissolving consent decree precluding publication of names of
persons arrested but not convicted due to Supreme Court decision holding that due process did
not protect against stigmatizing publications by law enforcement officials), aff’d, 562 F.3d 777(6th Cir. 2009).
Here, however, the first question for the Court is whether there has in fact been a
significant change in the law. See, e.g., United States v. Rueth Dev. Co., 335 F.3d 598, 604 (7th
Cir. 2003) (refusing to modify or vacate consent decree where Supreme Court decision “did not
expressly make [the relevant regulation] illegal” even though that “reading might be the only
logical extension of the case”); see also Rufo, 502 U.S. at 389 (“To hold that a clarification in the
law automatically opens the door for relitigation of the merits of every affected consent decree
would undermine the finality of such agreements and could serve as a disincentive to negotiation
of settlements in institutional reform litigation.”) That is, does the 1978 Consent Order, in
defendants’ words, use “an overly expansive, erroneous definition” of the right to habilitative
care and treatment. (Defs.’ Mot. at 14 n.2.) As explained herein, the answer to this question is
simply that defendants cannot argue for vacatur based on a significant change in the law.
1. Youngberg
In Youngberg, the Supreme Court considered “for the first time the substantive rights of
38
involuntarily committed mentally retarded persons under the Fourteenth Amendment to the
Constitution.” 457 U.S. at 314. The plaintiff in Youngberg, Nicholas Romeo, had been
involuntarily committed under the laws of Pennsylvania to a state institution. As described in
the Supreme Court’s decision, he was “profoundly retarded,” with “the mental capacity of an 18-
month old child, with an I.Q. between 8 and 10,” who could not “talk and lack[ed] the most basic
self-care skills.” Id. at 309. He had been committed to a state facility at the age of 26 because
his mother could no longer care for him after his father’s death. After he suffered a number of
injuries, both self-inflicted and from other residents, his mother filed a complaint in federal
district court. The precise question before the Supreme Court was whether a person
involuntarily committed to a state institution for the mentally retarded had “substantive rights
under the Due Process Clause of the Fourteenth Amendment to (I) safe conditions of
confinement; (ii) freedom from bodily restraints; and (iii) training, or ‘habilitation.’”25 Id. at
309.
Based on its prior decisions, the Court concluded, without the need for explication, that
the plaintiff’s right to safe conditions and right to freedom from bodily restraint were the “core
of the liberty protected by the Due Process Clause,” noting that since both rights survived
criminal conviction and incarceration, they certainly survived involuntary commitment. Id. at
315-16 (quotations omitted). As for the right to habilitation, the Court had never before
25
It was conceded by the State of Pennsylvania that the plaintiff “ha[d] a right to adequate
food, shelter, clothing, and medical care,” so the Court limited its inquiry to the narrow question
of “whether liberty interests also exist in safety, freedom of movement, and training.”
Youngberg, 457 U.S. at 315 (emphasis added). As discussed infra, this fact is relevant because
no matter how Youngberg is interpreted, it has no effect on a host of issues covered by the
consent decrees and the 2001 Plan. See infra pp. 55-58.
39
considered whether such a right existed or what its scope might be. Ultimately, it held that
plaintiff had a right to the habilitation he sought – a right to “minimally adequate or reasonable
training to ensure safety and freedom from undue restraint.” Id. at 319. In reaching this
conclusion, the Court noted that because the plaintiff “seeks only training related to safety and
freedom from restraints, this case does not present the difficult question whether a mentally
retarded person, involuntarily committed to a state institution, has some general constitutional
right to training per se, even when no type or amount of training would lead to freedom.” Id. at
318 (emphasis added). In a footnote, the Court added:
It is not feasible, as is evident from the variety of language and formulations in
the opinions below and the various briefs here, to define or identify the type of
training that may be required in every case. A court properly may start with the
generalization that there is a right to minimally adequate training. The basic
requirement of adequacy, in terms more familiar to courts, may be stated as that
training which is reasonable in light of identifiable liberty interests and the
circumstances of the case.
Id. at 319 n.25.
Having concluded that the plaintiff in Youngberg retained liberty interests in safety,
freedom from bodily restraint, and minimally adequate habilitation, the Court addressed the
question of how a court should identify possible violations of those rights. It held that whether
Romeo’s rights had been violated “must be determined by balancing his liberty interests against
the relevant state interests,” but that this balancing “cannot be left to the unguided discretion of a
judge or jury.” Id. at 321. Rather, “the proper standard for determining whether a State
adequately has protected the rights of the involuntarily committed mentally retarded” is for a
court to “make certain that professional judgment was in fact exercised.” Id. (quotations
omitted). Thus, the Court concluded, “the State [was] under a duty to provide respondent with
40
such training as an appropriate professional would consider reasonable to ensure his safety and
to facilitate his ability to function free from bodily restraints.” Id. at 324.
In a concurring opinion, Justice Blackmun, joined by Justices Brennan and O’Connor,
noted that the majority opinion “properly leaves unresolved” “whether respondent has an
independent constitutional claim, grounded in the Due Process Clause of the Fourteenth
Amendment, to that ‘habilitation’ or training necessary to preserve those basic self-care skills he
possessed when he first entered” the state institution. Id. at 325, 327. Justice Blackmun opined
that “it would be consistent with the Court’s reasoning today to include within the minimally
adequate training required by the Constitution such training as is reasonably necessary to prevent
a person’s pre-existing self-care skills from deteriorating because of his commitment.” Id. at
327 (quotation and citation omitted). As explained by Justice Blackmun,
If a person could demonstrate that he entered a state institution with minimal self-
care skills, but lost those skills after commitment because of the State’s
unreasonable refusal to provide him training, then, it seems to me, he has alleged
a loss of liberty quite distinct from – and as serious as – the loss of safety and
freedom from unreasonable restraints. For many mentally retarded people, the
difference between the capacity to do things for themselves within an institution
and total dependence on the institution for all of their needs is as much liberty as
they ever will know.
Id. at 327.
Thus, contrary to defendants’ suggestion, there is absolutely nothing in the Supreme
Court’s decision in Youngberg that overrules the 1978 Consent Order and the subsequent orders
that were entered both before and after Youngberg regarding plaintiffs’ constitutional right “to
receive habilitative care and treatment in the alternative least restrictive of individual liberty” or
the definition of what that right means. Indeed, the Court in Youngberg expressly stated that it
was not answering the “difficult question whether a mentally retarded person, involuntarily
41
committed to a state institution, has some general constitutional right to training per se.” Id. at
318.
2. Post-Youngberg Cases
In the almost 30 years since Youngberg was decided, the Supreme Court has not revisited
the daunting task of explicating the constitutional rights of the involuntarily-committed
developmentally disabled, and the United States Court of Appeals for the District of Columbia
Circuit has not had the occasion to ever address this issue. Thus, there is no controlling
precedent, other than Youngberg, and there is no consensus among the courts regarding
defendants’ proposed interpretation of Youngberg. On the contrary, courts and judges have
reached differing conclusions about Youngberg’s scope.
For example, in Clark v. Cohen, 794 F.2d 79 (3d Cir. 1986), the court held that plaintiff’s
rights were violated where she was confined at an institution “in the face of unanimous
professional opinion that she should be placed in a far less restrictive environment . . . .” Id at
87. In a concurring opinion, Judge Edward Becker elaborated on his view of the scope of the
constitutional right to habilitation,26 which he believed Youngberg did not address. See id. at 92-
98 (Becker, J., concurring). In his view, “Youngberg dealt exclusively with training related to
physical restraints; the Court expressly stated that it was neither considering nor ruling on any
broader right to habilitation.” Id. at 95. Citing Justice Blackmun’s concurrence in Youngberg,
Judge Becker stated that he also “would endorse the non-deterioration principle,” because “[t]he
mentally disabled cannot have meaningful autonomy, and hence meaningful liberty, without
26
The judge examined two possible theories of the right to habilitation – quid pro quo and
parens patriae – and concluded that both apply to a person who has been involuntarily
committed. Clark, 794 F.2d at 95.
42
basic skills; therefore, for the state to allow disabled persons’ skills to deteriorate is as sure a
denial of their liberty as is their confinement to an institution.” Id. at 96. He then went further
than Justice Blackmun, endorsing what he called a “[m]odified non-deterioration principle”:
the State should be required to provide such a person with at least as much
training as would match the improvement that he or she would have experienced
if never committed. The reasoning behind this position is analogous to the
reasoning supporting the non-deterioration principle: by committing people and
preventing them from developing self-care skills, the state is effectively depriving
them of the opportunity to develop and exercise their autonomy. This is a
deprivation of their due process right to liberty. . . . [Thus,] involuntarily civilly
committed persons have a right to treatment sufficient to develop their self-care
skills to at least the level at which they would be if the persons had not been
institutionalized.
794 F.2d at 96. As he explained:
Because [the plaintiff’s] institutionalization has led to her debilitation, the modified
non-deterioration principle requires the state to provide [her] . . . with training and
treatment sufficient to put her in the position in which she would have been had she
never been institutionalized. Because it appears from the numerous, uncontradicted
doctors’ reports in the record that placement in a [community living arrangement]
is the only or best way for [her] to receive the training she is due, I believe she has
a right to placement in the [community living arrangement], until she has acquired
the skills she would have had had she never been institutionalized.
Id. at 97. Finally, and significantly, Judge Becker’s opinion left open “the question whether the
involuntarily civilly committed have a right to even greater habilitation than the modified non-
deterioration principle would allow.” Id. at 98. For example, as noted in the concurring opinion,
[i]t might be argued . . . under the theories discussed here or some other theory of
habilitation, that the involuntarily civilly committed have a right to as much
habilitation as their capacity will allow. Alternatively, one might argue that all
involuntarily civilly committed persons are entitled to treatment up to an absolute
level, regardless of their status upon entrance to the institution.
Id. at 98 (emphasis added). Thus, according to this circuit judge, Youngberg is merely the
starting point for defining the constitutional right to habilitation; it by no means precludes
43
recognition of additional rights for plaintiffs who, unlike the plaintiff in Youngberg, could
benefit from more extensive habilitation.
The court’s decision in Thomas S. v. Flaherty, 699 F. Supp. 1178, 1184 (W.D.N.C.
1988), aff’d, 902 F.2d 250 (4th Cir. 1990), is another example of a post-Youngberg case that
endorses a broader right to habilitation than defendants advocate here.27 In Thomas S., the court
held that the State of North Carolina was violating the constitutional rights of approximately four
hundred mentally retarded persons who were confined in the state’s four psychiatric hospitals.
The court approved the parties’ agreement that in terms of habilitation, “minimum professional
standards require developmentally oriented habilitation for persons with mental retardation.” Id.
at 1192. Such developmental habilitation requires, inter alia; “[a]dequate involvement in
community activities,” defined as “being as involved as that individual is capable of being at the
time”; “a good interdisciplinary evaluation” that provides an “adequate assessment of the
individual needs of each class member”; “[p]roperly trained staff”; “[h]umane living conditions,”
which includes more than “endless days of boredom without variation”; “treat[ment] in as
normal a setting as possible” featuring “access to ordinary activities,” and the chance “to learn
and grow through observing and participating in the commonplace events of daily life,”
“developmental training and structured programs,” including “training in basic self-care skills,
community living skills, speech therapy, and vocational services.” Id. at 1192-94. The court
also found that “[b]ecause vocational activities are often a key to greater independence and
enjoyment of liberty, they are for most class members an essential service to avoid unnecessary
27
Although the Fourth Circuit stated that it rejected the idea that class members “had a
right to treatment in the least restrictive environment,” Thomas S., 902 F. 2d at 253-54, it also
affirmed the district court’s order which arguably could not exist absent such a right.
44
restraint.” Id. at 1194. The court relied on its finding that there was “professional consensus
that developmental, behavior-based treatment called ‘habilitation’ is the appropriate milieu for
people with mental retardation.” Id. at 1185. Finally, the court found that habilitation “is
defined as . . . [t]he process by which the staff of an agency assists an individual to acquire and
maintain those life skills that enable the individual to cope more effectively with the demands of
his or her own person and environmental and social functioning. Habilitation includes, but is not
limited to, programs of formal structured education and treatment.” Id. at 1184 (quoting
Accreditation Council for Services for Mentally Retarded and Other Developmentally Disabled
Persons (1981 ed.) (quotation and citation omitted)). Not only did the court recognize a broad
right to habilitation, it emphasized that plaintiffs were entitled both to appropriate professional
decisionmaking and implementation of those decisions. See id. at 1185 (faulting defendants for
not implementing community placement recommendations by treating professionals and noting
that “[t]he record is replete with other examples of placement and treatment recommendations
being ignored or their implementation being unjustifiably delayed”).28
Certainly there are cases in which courts applying Youngberg have defined the right to
habilitation more narrowly than the Court and the parties did in the 1978 Consent Order. For
example, in Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239 (2d Cir.
1984), the Second Circuit held that the right to freedom from undue restraint included the right
28
The court in Thomas S. also found that “the conditions and services at the state
psychiatric institutions are substantially below minimally accepted professional standard” in part
because of “[i]nadequate treatment plans and inadequate documentation of their
implementation.” Id. at 1197. As discussed herein, the constitutional requirement that
professional judgment be exercised in making decisions also requires that those decisions be
implemented. See infra pp. 61-62.
45
to be free from “excess locking of doors, locking of otherwise ambulatory persons into
wheelchairs, and failing to put on leg braces for individuals who can walk with their assistance,”
but it did not include “visiting shops, restaurants and recreational facilities in the outside
community.” Id. at 1247. It also held that there was no “entitlement to community placement or
a ‘least restrictive environment’ under the federal Constitution,” and that “[w]here the state does
not provide treatment designed to improve a mentally retarded individual’s condition, it deprives
the individual of nothing guaranteed by the Constitution; it simply fails to grant a benefit of
optimum treatment that it is under no constitutional obligation to grant.” Id. at 1250; see also
Lelsz v. Kavanagh, 807 F.2d 1243, 1250-51 (5th Cir. 1987) (no “right to habilitation in the least
restrictive environment” because “[t]he constitutional minimum standard of habilitation . . .
relate[s], not to the qualitative betterment of a retarded person’s life, but only to the training
necessary to afford him safety and freedom from bodily restraint”); Phillips v. Thompson, 715
F.2d 365, 368 (7th Cir. 1983) (“With respect to training, Youngberg teaches that, at the most, the
class members were entitled to minimally adequate training as is reasonable in light of their
interest in freedom of movement and that deference must be shown to the professional judgment
of those directing the operation of the institution. Such training as is required, therefore, is
training to enhance the ability of the class members to exercise their right to liberty of
movement.”); Jackson v. Fort Stanton Hosp. & Training Sch., 757 F. Supp. 1243, 1309 (D.N.M.
1990) (“no substantive due process right to habilitation in the least restrictive environment and
there is no constitutional right to placement in a community setting”), rev’d in part, 964 F.2d
980 (10th Cir. 1992); S.H. v. Edwards, 886 F.2d 292 (11th Cir. 1989) (affirming district court’s
denial of “plaintiffs’ claims for relief in the nature of habilitation in the least restrictive
46
environment in accordance with the recommendation of professional treatment staff” (quotation
omitted)).
And then there are cases that fall somewhere in between. For example, in Association for
Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473 (N.D. 1982), aff’d, 713 F.2d 1384(8th Cir. 1983), the court held that
the right to freedom from undue restraint . . . imposes a standard for the court’s
determination whether professional judgment is being exercised in the use of
medication and physical means to restrain residents. This right obligates the state
to provide capable retarded residents with reasonable opportunities to make trips
into the outside communities. It also tests the freedoms allowed to residents, such
as the opportunity to make small personal decisions concerning what to wear,
what to eat, recreation, etc. This right against unreasonable restraint also
involves the much discussed question of alternatives to institutionalization, such
as community homes. Prior to the Youngberg decision, this court held that the
[F]ourteenth [A]mendment secures a right to the least restrictive practicable
alternatives to institutionalization. While the Youngberg decision does not
directly address this specific right, the Court’s analysis indicates that it would
reject an absolute right to the least restrictive alternatives . . . . Following this
analysis, this court must conclude that a constitutional right to the least restrictive
method of care or treatment exists only insofar as professional judgment
determines that such alternatives would measurably enhance the resident’s
enjoyment of basic liberty interests.
Id. at 486 (emphasis added; citation omitted). As for “the right to minimally adequate training,”
the court held that “the resident possesses a right to training only insofar as that training serves to
enhance or further that resident’s exercise of basic liberty.” Id. at 486-87. Thus, it does not
include “training in music or vocational skills,” but it does include “training in walking or basic
communication . . . if the resident could benefit therefrom . . . .” Id. at 487. It also includes “a
right to reasonable training which enables the resident to acquire or maintain minimum self-care
skills – skills in feeding, bathing, dressing, self-control, and toilet training.” Id. (emphasis
omitted). The court also adopted Justice Blackmun’s view that the right to training includes
47
training “to enable them to maintain the minimum self-care skills that they possessed when they
entered the institution,” and based on this view, it held that the “the acquisition and maintenance
of those skills [are] essential to the exercise of basic liberties.” Id. at 487 (emphasis added).
Accordingly, all that can be said about the post-Youngberg cases, none of which is
controlling precedent, is that they disagree about how narrowly Youngberg should be interpreted
and even if interpreted narrowly, how it should be applied to everyday situations. This very lack
of clarity dooms defendants’ suggestion that Youngberg precludes recognition of a constitutional
right to habilitation as described in the 1978 Consent Order.
In the end, the critical question in a Rule 60(b)(5) inquiry is whether defendants have met
their burden to show that Youngberg was a “significant change” in the law. They have not.
There is language in Youngberg that arguably contradicts defendants’ reading of the case; there
is no subsequent Supreme Court decision or post-Youngberg decision from our circuit court
regarding the meaning of Youngberg; and among those that have addressed it, there is no
agreement. In the face of disagreement about what the law is and no controlling precedent, the
mere fact that some courts have adopted the interpretation defendants propose here is not
sufficient to meet that burden. Moreover, as explained herein, defendants’ position that
Youngberg is a significant change in law is seriously undermined by the fact that for almost 28
years they have accepted the constitutional standard in the 1978 Consent Order and promised to
achieve compliance with court orders based on that standard.
48
B. Defendants’ Argument Regarding Youngberg Was Not Made Within a
Reasonable Time
Defendants concede that if Youngberg is not treated as a significant change in law, their
motion to vacate must fail.29 But even if the Court agreed with defendants that Youngberg
represented a significant change in the law, that does not ensure success under Rule 60(b)(5).30
See Rufo, 502 U.S. at 384. It remains for the Court to decide whether modification in light of
that change is warranted. See id. at 391. Given the particular (and probably unique) facts of this
case, the Court does not believe that the relief sought by defendants is warranted.
Rule 60(b)(5) requires that a motion for modification be made within “a reasonable
time.” Fed. R. Civ. P. 60(b)(5). “[W]hat constitutes ‘reasonable time’ for a filing under Rule
60(b) depends on the facts of each case.” Ingram v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
371 F.3d 950, 952 (7th Cir. 2004); see also McCorvey v. Hill, 385 F.3d 846, 849 n.4 (5th Cir.
2004); Fed. Land Bank of St. Louis v. Cupples Bros., 889 F.2d 764, 767 (8th Cir. 1989). Factors
to consider include “the length of the delay, the explanations for the delay, the prejudice to the
opposing party caused by the delay and the circumstances warranting relief.” Associated
Builders & Contractors v. Mich. Dep’t of Labor, 543 F.3d 275 (6th Cir. 2008); see also
Shakman v. City of Chicago, 426 F.3d 925 (7th Cir. 2005) (relevant factors include “the litigants’
29
At oral argument, the Court asked defense counsel: “If I say the ‘78 [order] is a correct
statement and that the subsequent orders incorporate and flow from [it], what happens then? End
of my analysis?” Defendants’ counsel replied: “I think it is the end of your analysis, Your
Honor.” (12/17/09 Tr. at 49.)
30
As discussed infra, defendants also ignore the fact that even if the Court accepts their
Youngberg argument, it would justify, at most, partial modification of some court orders
pertaining to plaintiffs’ right to habilitation and would have no impact on those portions of the
orders, arguably the most critical provisions, which address plaintiffs’ constitutional rights to
safety and health care. (See infra pp. 54-58.)
49
knowledge of the grounds for relief,” “the interest in finality, the reason for delay, the practical
ability of the litigant to learn earlier of the grounds relied upon, and [the consideration of]
prejudice [if any] to other parties” (quotations omitted)). Even applying the flexible approach a
court must take in considering a Rule 60(b)(5) motion in institutional reform litigation, see
Horne, 129 S. Ct. at 2594-95; Rufo, 502 U.S. at 381, defendants’ Youngberg argument comes
decades too late, long after the entry of countless remedial court orders, many of which
defendant agreed to and all of which were relied upon these many years by the Court, the Special
Masters, the plaintiffs and the Department of Justice.
The Supreme Court decided Youngberg in 1982, almost 30 years ago. Defendants could
have sought modification of the 1978 Consent Order at any time thereafter based on the same
argument they make today – that Youngberg effectively overruled parts of this Court’s 1978
consent decree, thereby requiring modification of that decree. And if there was any question that
a change in law could provide the basis for modification of a consent decree, that question was
answered in 1992 by Rufo. 502 U.S. at 393. Indeed, there have been a number of cases in the
intervening years, which defendants rely upon, where parties have sought and courts have agreed
that modifications or vacatur based on a change in law was appropriate. See, e.g., Sweeton, 27
F.3d at 1164-65; Evans, 10 F.3d at 480, 482-83; Briley, 511 F. Supp. 2d at 927.31
Nor is this a case where defendants can justify the delay by claiming that they were
“unaware” of the existence of the decree or its impact. Cf. Briley, 511 F. Supp. 2d at 912(“Municipal entities, . . . however, do not have perfect institutional memory, and where a consent
31
Significantly, defendants cannot justify their delay by arguing that Horne is the change
in law that they are relying on. In fact, defendants filed their motion even before Horne was
decided on June 25, 2009.
50
decree has gone unenforced for many years, the individuals who administer those entities may
not have any knowledge of its existence.”). To the contrary, defendants have been in Court
continually and repeatedly since the 1978 Consent Order defending against plaintiffs’ charges of
noncompliance, and when their efforts failed for good reason, numerous substantive court orders
resulted.32
The only reason defendants give for their 27-year delay in making their Youngberg
argument is that they only just realized that the 1978 Consent Order was based on a
“misunderstanding of the governing law.” (See 12/17/09 Tr. at 8.) Even assuming such a
“mistake” could ever justify a delay of this magnitude, it does not do so here. Defendants cannot
make a plausible argument that they, along with everyone else involved in this case, have been
operating under a misguided view of the law and only now, with the arrival of a new Attorney
General, has the law become clear. (See 12/17/09 Tr. at 19.) Not only did it take 27 years for
defendants to realize their purported mistake, during that period, they entered into a number of
additional consent orders and agreements that were designed to achieve the constitutional
standards enunciated in the 1978 Consent Order. (See 1983 Consent Order; 1995 Reference
Order; 2001 Joint Findings of Fact; 2001 Plan; 2001 Consent Order; 2007 90-Day Consent
Order.) For example, in 1995 defendants “admit[ted] that the District has a continuing
responsibility to provide the class members with habilitation in accordance with their needs” and
32
(See, e.g., 1981 Consent Order; 1983 Consent Order; Jan. 1990 Contempt Order; Apr.
1990 Contempt Order; Order Denying Motion for Civil Contempt Sanctions, May 15, 1991;
1995 Contempt Order; 1996 Order & Remedial Plan; 2001 Joint Findings of Fact, Consent
Order, Plan for Compliance; 2004 Coordination Order; 2007 Order and Opinion on Liability;
2007 90-Day Consent Order; 2008 Special Masters’ Report re 90-Day Consent Order; 2009
Special Masters’ Report.)
51
“admit[ted] that they also are required to provide adequate medical care, psychological care, day
programming, community residential placements and other support systems as set forth in the
class members’ [individual habilitation plans].” (1995 Contempt Order at 5-6.) And as recently
as September 2007, the current administration under Mayor Fenty agreed to take a number of
specific actions, including “recruiting five new providers” and ensuring that the residences
operated by these providers, inter alia, “are located close to shops, restaurants, community
resources and public transportation, or there is transportation available to class members in order
to access these resources” – an obligation that clearly flows from the parts of the 1978 Consent
Order the District now contends are “extraconstitutional.” (2007 90-Day Order at 2.) Moreover,
the Court’s March 2007 Liability Opinion and the 2009 Special Masters’ Report are replete with
references to a legal standard that only now does the District find convenient to repudiate.
“Modification of a consent decree may be warranted when changed factual conditions make
compliance with the decree substantially more onerous,” Rufo, 502 U.S. at 384, but not simply
because “it is no longer convenient to live with the terms of a consent decree.” Id. at 383.
Finally, and perhaps most importantly, defendants’ actions over the past 30 years – their
repeated representations, promises and agreements – have led the Court and the plaintiffs to
believe that defendants had every intention of complying with the existing orders. For example,
in asking the Court in February 2007 to delay its liability ruling, the District stated that it was
“cognizant that much remains to be done to bring DDS into compliance with outstanding court
orders and the 2001 Plan,” but assured the Court that the “Fenty Administration is fully
committed to the success of the new agency, the delivery of improved services and care to the
consumers served by the agency, and compliance with the 2001 Plan.” (Defs.’ Notice of Filing
52
of Supplemental Info. in Resp. to the Court Monitor’s Quarterly Report at 8, Feb. 5, 2007
(emphasis added).) Again, in May 2008, Peter Nickles, the Attorney General for the District,
assured the Court “I am not seeking . . . to take away what [the plaintiffs] won.” (Hr’g Tr. at 37,
May 15, 2008.) But that is exactly what the District seeks to do.
Everyone, including the three judges of this Court, who has struggled with this case for
over 30 years has relied on defendants’ repeated promises that they intended to comply.
Plaintiffs have repeatedly entered into new agreements with defendants. (See, e.g., 1981
Consent Decree, 1983 Consent Decree; 2001 Consent Order; 2001 Plan; 2007 90-Day Consent
Order.) Plaintiff have also withdrawn motions to find defendants in noncompliance or in
contempt that they might otherwise have successfully pursued. (See, e.g., 1983 Consent Order at
14 (withdrawing motion for contempt); Evans, 139 F. Supp. 2d at 84 (waiving “all claims for
past contumacious conduct of defendants as of the date of the entry of the [2001] Consent Order
and approval of the Settlement Agreement”).)
Moreover, the Court has on numerous occasions endorsed agreements between the
parties and adopted them as court orders. (See, e.g., 1981 Consent Decree, 1983 Consent
Decree; 2001 Consent Order; 2001 Plan; 2001 Joint Findings of Fact; 2007 90-Day Order.)
Judge Stanley Harris’s reliance on defendants’ stated intention to achieve compliance with
existing court orders is especially apparent in his 2001 opinion, wherein he notes that “[t]he
dispute seemed intractable until last year, towards the end of which there were commendable and
extensive efforts by Mrs. Farrell, Mr. Sundram, and counsel for the parties seeking to resolve the
problems faced by all.” Evans, 139 F. Supp. 2d at 85. The Court commended the Special
Masters and counsel not only for “resolving their differences, but for the exceptionally thorough
53
manner in which they have agreed upon procedures for dealing with the problems that have
persisted for so long” and explained that it approved the Plan and adopted the parties’ consent
order and settlement agreement because it “readily conclude[d] that the proposed compromise of
the controversy, which will be of substantially greater benefit to the class than would continued
litigation over how to deal with past conduct by defendants, is fair, reasonable, and adequate.”
Id.; (see also 1995 Contempt Order at 1 (emphasizing that “[a]n integral part of this litigation has
been the closure of Forest Haven and the relocation of class members to community living
arrangements with adequate habilitation suitable to each class member” and “[t]o this end, the
Court has entered numerous orders, including consent orders between the parties, to safeguard
the rights of class members and ensure their adequate and appropriate habilitation.”).)
In sum, no factor supports a finding that defendants have filed their Rule 60(b)(5)
motion, to the extent it is based Youngberg, within a “reasonable time.” Defendants have no
excuse for their delay; they have repeatedly consented to the constitutional standard as stated in
the 1978 Consent Order; they successfully convinced the plaintiffs and the Court on numerous
occasions that they intended to comply with the court orders; and the vulnerable class members,
their counsel, the Department of Justice and three judges of this Court have relied to their
detriment on the District’s endless promises.
C. At Most, Defendants’ View of Youngberg Supports Only a Limited
Modification of the Consent Orders
Even if defendants could argue that Youngberg was a significant change in the law
(which they cannot), that argument would support nothing more than a limited modification of
the consent orders. In the first place, even if Youngberg changed the law with respect to the
scope of the constitutional right to habilitation, that would not undermine the legal basis for the
54
host of provisions in the court orders and the 2001 Plan that relate solely to health care and
safety. See Youngberg, 457 U.S. at 315-16 (not disputed that plaintiff had “a right to adequate
food, shelter, clothing, and medical care” and Court held that right to safe conditions and right to
freedom from bodily restraint were the “core of the liberty protected by the Due Process
Clause”). Requirements relating to these rights (as opposed to habilitation) are a substantial part
of the challenged court orders and the 2001 Plan. (See 1978 Consent Order; Evans, 459 F. Supp.
at 484, 488-89; 1981 Consent Order at 6-7; 1983 Consent Order at 4-8; 2001 Consent Order;
2001 Plan; 2007 90-Day Consent Order.) Moreover, these provisions are arguably the most
critical and cover areas where defendants have been most deficient. Certainly, in recent years,
health and safety have been the primary focus and concern of the Court, the Special Masters, the
Court Monitor and the parties. See Evans, 480 F. Supp. 2d at 298-314 (factual findings in March
2007 Liability Opinion regarding health and safety); (2007 90-Day Order (addressing two
critical goals: increasing the number of qualified providers and improving the health and safety
of class members); 2009 Special Masters’ Report at 18-67 (findings and conclusions of law
regarding health care, mental and behavioral health care, guardianship, safety and protection
from harm); Court Monitor’s Report, June 11, 2009; and Court Monitor’s Report, Dec. 10,
2009.)
For example, according to the 2001 Plan, the crux of plaintiffs’ right to be kept free from
harm is addressed by six specific directives in the 1978 Consent Order and the 1983 Consent
Order. (2001 Plan at 27-28). These directives
require conducting timely and thorough investigations into serious incidents,
including deaths; identifying causes and contributory factors as well as preventive
and corrective actions that appear to be warranted; and ensuring the
implementation of recommendations that are made as a result of the
55
investigations. In addition to responding to individual cases, the defendants are
required to identify systemic patterns and trends and communicate them to
providers to facilitate corrective action for recurrent problems on an individual
consumer level, provider level and a systemic level. . . . [and to] ensure that
appropriate training programs for all staff, including staff assigned to residential
settings are developed and implemented.
(2009 Special Masters’ Report at 50.) In March 2007, this Court found “defendants ha[d] failed
in many significant respects to accomplish the tasks and outcome criteria associated with the
Court’s Orders relating to class member safety and to comply with the terms of the Orders
themselves.” Evans, 480 F. Supp. 2d at 313. In late November 2007, defendants conceded that
as of yet, conditions had not fundamentally changed. (Def.’s Notice Concerning Proposed
Comprehensive Monitoring at 2.) And, as of December 2008, the Special Masters found that
“there is clear and convincing evidence that the problems being experienced by class members in
the area of safety and protection from harm are continuing, serious and systemic.” (2009 Special
Masters’ Report at 67). Thus, no matter how Youngberg is interpreted, it would not excuse
defendants from these obligations.
Moreover, even if defendants’ overly narrow interpretation of Youngberg were to be
adopted, it would only entitle defendants to partial modification of the court orders concerning
habilitation. For example, as the 2007 Liability Opinion makes clear, the right to receive
habilitative care and treatment in the alternative least restrictive of individual liberty, see Evans,
480 F. Supp. 2d at 314-19, is only one aspect of plaintiffs’ right to habilitation/welfare.
Plaintiffs are also entitled to “a written ISP based upon individualized assessments and
formulated in accordance with professional standards”; “an individualized habilitation program
designed in accordance with the ISP”; identification in the ISP of “all services and supports
required by class members regardless of availability”; annual review of the ISP; “adaptive
56
equipment” if needed; “enough case manager positions to meet the required case manager to
client ratio”; “appropriate training programs for staff, including case managers”; and case
managers who ensure implementation of ISPs and take appropriate action after incidents. See id
at 319, 321-22; (see also 2009 Special Masters’ Report at 67-75 (same)). Similarly, in the six-
page, single-spaced 2007 90-Day Consent Order (which defendants agreed to after the Fenty
administration took office), the only provision arguably affected by Youngberg would be the
requirement that defendants ensure that residences operated by new providers “are located close
to shops, restaurants, community resources and public transportation, or there is transportation
available to class members in order to access these resources.” (2007 90-Day Consent Order at
2.)
Finally, one of defendants’ primary points about Youngberg is that it rejects any right to
community placement, but the present record establishes that plaintiffs failed to prove that
defendants are in noncompliance with the 2001 Plan with respect to moving a significant number
of class members into group homes. (See 2009 Special Masters’ Report at 72.)33 For those class
33
As described in the 2009 Special Masters’ Report:
The unchallenged testimony of defendants’ witness, Laura Nuss, is that there have
been 250 placements into less restrictive environments. Defendants have moved
a significant number of class members to apartments and group homes. The
evidence during the liability phase of this action was that 55% of class members
resided in ICFs/MR (366 of 659 class members, 480 F. Supp 2d at 315 n.43.)
That number is down to a little over 250 class members (approximately 40% of
the class), and defendants reasonably expect to accelerate that movement with the
further development of the community-based waiver and the Money Follows The
Person Grant, which is expected to further reduce the utilization of ICFs/MR by
60% (Nuss Trial Tr. 275:18-21). Based on these findings of fact, the Special
Masters find that plaintiffs have not sustained their burden of proving by clear
and convincing evidence non-compliance with court orders requiring residential
placements in less restrictive settings.
57
members who continue to reside in ICF/MR settings, the Report noted that “there was no
evidence submitted to establish that continued placement of all or some subset of these class
members in such settings was improper or contrary to a choice made by the class member or an
authorized surrogate decision-maker.” (Id. at 73.)
In the end, then, defendants’ argument that Youngberg changed the law on habilitation
would, at most, require partial modification of a limited number of court orders concerning
habilitation; it would not affect the legitimacy of any other order, including many critical orders,
concerning plaintiffs’ health, welfare and safety. But defendants do not seek such a limited
modification; rather they make an “all or nothing” argument for vacatur.34
(Id. at 72.)
34
(See 12/17/2009 Tr. at 22 (“Your Honor, I do not think there is a middle ground.”); id at
24 (“modification as to the plan would be something that would almost be a futile act”).) In
defendants’ brief, they state that if the Court rejects this option, “[i]n the alternative, the Court
should at the very least modify the orders currently in force, to eliminate any provisions that are
not reasonably necessary to remedy a current and ongoing constitutional violation.” (Defs.’
Mem. at 7.) However, if defendants want a modification, it is their burden to show the Court
that the modification is narrowly tailored to the change in circumstances. Rufo, 502 U.S. at 383(“[A] party seeking modification of a consent decree bears the burden of establishing that a
significant change in circumstances warrants revision of the decree. If the moving party meets
this standard, the court should consider whether the proposed modification is suitably tailored to
the changed circumstance.”). Defendants have made no effort to offer a modification suitably
tailored to the arguably changed circumstances. (See 12/17/09 Tr. at 39 (“Your Honor, in all
candor, if you do not vacate the orders, we would have to look at them anew and see if any – if –
what modifications could be made to them that are realistic.”)); see also See LaShawn v. Fenty,
No. 89-CV-1754, 2010 WL 1270202, at *21 (D.D.C. Apr. 5, 2010) (defendants similarly did not
“propose[] a modification tailored to the alleged changed circumstances” leaving the court
without “an adequate proposal to consider”). Moreover, they have steadfastly refused to invoke
the procedures provided for by the 2001 Plan (see 2001 Plan at 6-10) or under Rule 60(b)(5) for
modification or termination of orders that have been achieved or those that are no longer relevant
or obtainable.
58
II. DEFENDANTS ARE NOT ENTITLED TO VACATUR BASED ON CHANGE IN
FACTS
A. Defendants Are Not in Substantial Compliance with Constitutional
Requirements
Defendants argue that, even though they have not achieved compliance with the court
orders or the 2001 Plan, the objects of those orders have been attained because defendants have
satisfied the “constitutional minimum.” (Defs.’ Mem. at 32 (“District’s current system for
serving individuals with intellectual and developmental disabilities . . . patently satisfies class
members’ Fifth . . . Amendment rights to be free from harm and to receive minimally adequate
habilitative care and treatment.”).) Defendants’ argument fails because (1) it rests on a flawed
definition of the constitutional minimum; and (2) its rests on an erroneous interpretation of
Horne as allowing properly entered consent orders to be vacated, despite defendants’ non-
compliance with those orders, once defendants achieve the constitutional minimum.
1. Defendants Cannot Provide a Workable Definition of Constitutional
Requirements Based on Youngberg
Defendants’ argument that they have satisfied the “constitutional minimum” requires that
that concept be defined, but defendants’ proffered definition is fundamentally flawed.
According to defendants, Youngberg establishes as the constitutional minimum that involuntarily
committed individuals have only the right to be kept “free from harm” and the right to
“minimally adequate habilitation,” defined as “such training as may be reasonable in light of [the
individual’s] liberty interests in safety and freedom from unreasonable restraints.” (Def. Mot. to
Vacate at 16 (quotations omitted) (quoting Youngberg, 457 U.S. at 322). Defendants then baldly
assert that they have met this constitutional minimum because “[w]e’re exercising professional
judgment in the care and treatment of consumers within the class. They’re free from harm. And
59
they’re getting sufficient training and habilitation so that their liberty interests are protected.”
(12/17/09 Tr. at 104.)
Although the constitutional minimum certainly includes the rights articulated in
Youngberg, defendants’ argument that no more is required is premised on an error of law. First,
as noted, Youngberg did not concern an involuntarily committed person’s constitutional right to
“food, shelter, clothing, and medical care.” Youngberg, 457 U.S. at 315. It is indisputable that
any constitutional minimum standard must include protection of these rights.35 Moreover, as
these rights were not at issue in Youngberg, Youngberg provides no guidance as to what is
required to meet the constitutional minimum with respect to the protection of these rights.
In addition, to the extent defendants contend that the constitutional minimum is met as
long as there is a system in place that calls for the exercise of professional judgment (see
12/17/09 Tr. at 103;36 Defs.’ Mem. at 33 (“no credible argument can be made that there is a
systemic lack of professional judgment exercised by treating professionals in the IDD system”)),
35
When asked to explain what a minimal right to medical care encompasses, defense
counsel suggested that plaintiffs’ right to medical care was limited to the “health implications” of
the “very minimal” “duty to keep them safe and free from unreasonable restraints.” (12/17/09
Tr. at 100.) As an example of what might be covered, defense counsel suggested “if a person
needs certain treatment so that they can be free from unreasonable restraints, yes, that is part of
what Youngberg dictates.” (Id.) Or, if a person has a tumor, there may be a some duty to act if
the person “may not be safe, depending on the invasiveness of the tumor.” (Id. at 101.) Not only
is it incomprehensible that an involuntarily committed developmentally disabled person is not
entitled to more than counsel’s meaningless and inadequate level of care, but counsel’s inability
to provide any workable definition illustrates the inherent difficulty prescribing in the abstract
what services are required so that a constitutionally protected right will be something more than
a hollow promise.
36
During oral argument, the Court asked defense counsel whether it mattered if “the
healthcare provider’s recommendations as to the class members are not implemented in a timely
manner,” to which counsel responded, “I don’t think Youngberg speaks to the timeliness of the
matter.” (12/17/09 Tr. at 103.)
60
that proposition is not supported by Youngberg. Youngberg expressly states that a court must
“make certain that professional judgment in fact was exercised” in attempting to protect the
rights of an involuntarily committed individual. 457 U.S. at 321 (emphasis added) (quotation
omitted). As other courts have recognized, in order for this requirement to have any substance, it
cannot be met purely at the systemic level; rather, professional judgments must be implemented
in a timely fashion. See, e.g., Thomas S., 902 F.2d at 252 (holding that district court properly
imposed liability because it “found that many of the decisions of the treating professionals had
not been implemented” and “found areas in which the decisions of the treating professional
substantially departed from accepted standards”); Haldeman v. Pennhurst, 901 F.2d 311, 324 (3d
Cir. 1990) (“obligations [under the consent decree] clearly run to class members as individuals,
not as a group” and thus “substantial compliance must be measured with respect to the services
each individual retarded class member is receiving and not with respect to the services received
by the class as a whole”).
Finally, defendants again ignore, as discussed above, that Youngberg did not address the
right to habilitation generally; it decided only that the plaintiff, who was profoundly retarded and
would not benefit from any other habilitation, was entitled to the limited habilitation he sought –
such training as may be reasonable in light of his liberty interests in safety and freedom from
unreasonable restraints. See Youngberg, 457 U.S. at 318 (because plaintiff “seeks only training
related to safety and freedom from restraints, this case does not present the difficult question
whether a mentally retarded person, involuntarily committed to a state institution, has some
general constitutional right to training per se” (emphasis added)). For all these reasons, the
rights recognized by Youngberg are necessary, but not sufficient, to give meaning to plaintiffs’
61
basic constitutional rights.
2. Even If Defendants Have Satisfied Minimum Constitutional
Requirements, This Does Not Justify Vacatur Under Horne
The second problem for defendants is that they cannot seek vacatur of all court orders
based on Horne. In Horne, the district court concluded, after a trial, that the State of Arizona
was violating the requirement in the Equal Educational Opportunities Act (“EEOA”) “to take
appropriate action to overcome language barriers that impede equal participation by its students
in its instructional programs,” 20 U.S.C. § 1703(f), because “the amount of funding the State
allocated for the special needs of ELL students . . . was arbitrary and not related to the actual
funding needed to cover the costs of ELL instruction.” Horne, 129 S. Ct. at 2589. Pursuant to
this judgment, the court ordered the State, inter alia, to “prepare a cost study to establish the
proper appropriation to effectively implement ELL programs,” “to provide funding that bears a
rational relationship to the actual funding needed,” and to “appropriately and constitutionally
fund” the ELL program. Id. at 2590 (quotations and citations omitted).
The defendants never complied with any of the court’s orders, but in 2006 the State
Legislature passed a new law that “increased ELL incremental funding [by a fixed amount] (with
a 2-year per-student limit on such funding) and created two new funds – a structured English
immersion fund and a compensatory instruction fund – to cover additional costs of ELL
programming.” Id. at 2590. Based on this new legislation, the state legislature asked the district
court to vacate its orders. The district court concluded that Rule 60(b)(5) relief was not
warranted because the new law “did not establish a funding system that rationally relates funding
available to the actual costs of all elements of ELL instruction.” Id. at 2591 (quotations
omitted). The Ninth Circuit affirmed, emphasizing that because the original declaratory
62
judgment order centered on the adequacy of ELL incremental funding, relief would be
appropriate only if “there are no longer incremental costs associated with ELL programs in
Arizona,” or if “Arizona had altered its funding model.” Id. at 2591-92 (quotations omitted).
The Supreme Court reversed and remanded, holding that the lower courts had erred by
looking only to whether the State was fulfilling the specific terms of the judgment instead of
considering whether “Arizona is now fulfilling its statutory obligation by new means that reflect
new policy insights and other changed circumstances.” Id. at 2589. The Court remanded the
case with instructions to consider “whether the objective of the District Court’s 2000 declaratory
judgment order – i.e. satisfaction of the EEOA’s appropriate action standard – has been
achieved.” Horne, 129 S. Ct. at 2595 (quotations omitted).
Under Horne and earlier Supreme Court decisions, a motion to vacate, such as defendants
have filed here, requires the Court to determine whether the “objective” of the court orders has
been attained. Id.; Frew, 540 U.S. at 442 (“The federal court must exercise its equitable powers
to ensure that when the objects of the decree have been attained, responsibility for discharging
the State’s obligations is returned promptly to the State and its officials.”); see also LaShawn,
2010 WL 1270202, at *11 (in addressing motion to vacate consent decree, “it is appropriate to
consider whether the objectives of the decree have been achieved”).
Defendants attempt, nevertheless, to read Horne as a new rule of law that equates
satisfying the constitutional minimum with attaining the objective of a consent decree. (See
Defs.’ Mem. at 18 (no ongoing constitutional violations because the “current IDD system
administered by DDS/DDA . . . not only satisfies but greatly surpasses the minimum
constitutional standards established by the Fifth Amendment.” ); 12/17/09 Tr. at 10-11, 13, 16,
63
42, 48.) This Court cannot accept this exceedingly broad interpretation of Horne, for Horne
cannot mean that when a defendant agrees to a series of measures designed to remedy
constitutional violations, these agreements are necessarily unenforceable because the measures
exceed some ill-defined constitutional floor.
Unlike Horne, the present case involves a consent decree, not a litigated judgment. A
consent decree “‘embodies an agreement of the parties’ and is also ‘an agreement that the parties
desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to
the rules generally applicable to other judgments and decrees.’” Frew, 540 U.S. at 437 (quoting
Rufo, 502 U.S. at 378). “[A] federal consent decree must spring from, and serve to resolve, a
dispute within the court’s subject-matter jurisdiction; must come within the general scope of the
case made by the pleadings; and must further the objectives of the law upon which the complaint
was based.” Id. (citing Firefighters, 478 U.S. at 525). “Consent decrees entered in federal court
must be directed to protecting federal interests.” Id.; see also LaShawn, 2010 WL 1270202, at
*13.
The decision in Horne was obviously motivated by the perceived dangers of long-term
judicial involvement in local government institutions, noting that “Rule 60(b)(5) serves a
particularly important function in . . . ‘institutional reform litigation’” because “injunctions
issued in such cases often remain in force for many years, and the passage of time frequently
brings about changed circumstances – changes . . . in governing law . . . and new policy insights
– that warrant reexamination of the original judgment.” Horne, 129 S. Ct. at 2593. The Court
in Horne also noted that “institutional reform injunctions often raise sensitive federalism
concerns,” particularly where they “involve[] areas of core state responsibility” or “ha[ve] the
64
effect of dictating state or local budget priorities.” Id. at 2593-94. And in dicta it suggests that
these problems are exacerbated in cases governed by consent decrees rather than litigated
judgments because consent decrees often “go well beyond what is required” by law, and
“thereby ‘improperly deprive future officials of their designated legislative and executive
powers.’” Id. at 2594 (quoting Frew, 540 U.S. at 441).
But in Horne, the Supreme Court also endorsed and cited its prior decisions in Rufo and
Frew – decisions approving the use of consent decrees in institutional reform cases. See Horne,
129 S. Ct. at 2593-95; see also Salazar v. District of Columbia, No. 93-452, 2010 WL 547834, at
*3 (D.D.C. Feb. 18, 2010) (concluding that Horne “reaffirmed the vitality of [Rufo,] 502 U.S.
367, 368 (1992), the leading case setting forth the standards for modifying a final judgment
under Rule 60(b)(5) in institutional reform cases.”); LaShawn, 2010 WL 1270202, at *8, *12-
*13 (applying Rufo standards).37 If, as defendants argue, there is an inherent conflict between
Horne and Rufo or Frew, the Supreme Court certainly did not acknowledge it. Thus, this Court
is bound by those earlier decisions, and it will not adopt defendants’ attempt to use Horne to
undermine their holdings. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (“If a precedent of
this Court has direct application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the [lower court] should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.”).
Significantly for purposes of the present case, Rufo and Frew establish that a consent
decree may appropriately go beyond the bare bones of what a court could order without the local
37
As noted by Judge Hogan, 2010 WL 1270202, at *13, the D.C. Circuit in LaShawn
upheld a decree even assuming that it “imposes requirements beyond those of District law.”
LaShawn A. v. Barry, No. 94-7044, 1996 WL 679301, at *1 (D.C. Cir. Oct. 30, 1996).
65
government’s consent.38 See Rufo, 502 U.S. at 389 (“But we have no doubt that, to ‘save
themselves the time, expense, and inevitable risk of litigation,’ [the defendants] could settle the
dispute over the proper remedy for the constitutional violations that had been found by
undertaking to do more than the Constitution itself requires (almost any affirmative decree
beyond a directive to obey the Constitution necessarily does that), but also more than what a
court would have ordered absent the settlement.” (citation omitted)); Frew, 540 U.S. at 437-38(rejecting argument that consent decree violates the Eleventh Amendment on the that “state
officials [may agree] to bind state governments to significantly more commitments than what
federal law requires”); see also Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478
U.S. 501, 525 (1986) (consent decree may properly “provide[] broader relief than the court could
have awarded after a trial”). Indeed, that is one reason why consent decrees are a valuable tool
for resolving such cases. See Rufo, 502 U.S. at 383 (noting that if plaintiffs enter into a consent
38
Even without consent, a court may impose a remedy that goes beyond ordering
defendants to satisfy the constitutional floor. Federal court decrees “exceed appropriate limits if
they are aimed at eliminating a condition that does not violate the Constitution or does not flow
from such a violation,” Milliken, 433 U.S. at 282, but “where . . . a constitutional violation has
been found, the remedy does not ‘exceed’ the violation if the remedy is tailored to cure the
condition that offends the Constitution.” Id. (quotation omitted). For example, in Milliken,
“[t]he ‘condition’ offending the Constitution is Detroit’s de jure segregated school system, which
was so pervasively and persistently segregated that the District Court found that the need for the
educational components flowed directly from constitutional violations by both state and local
officials. These specific educational remedies, although normally left to the discretion of the
elected school board and professional educators, were deemed necessary to restore the victims of
discriminatory conduct to the position they would have enjoyed in terms of education had these
four components been provided in a nondiscriminatory manner in a school system free from
pervasive de jure racial segregation.” Id.Significantly, this same principle was adopted in Horne, where the Court recognized that
federal court decrees are not limited to the constitutional floor in awarding relief for a violation
of law. Rather, federal court decrees do not “exceed appropriate limits if they are aimed at
eliminating a condition that . . . flow[s] from such a violation.” See Horne, 129 S. Ct. at 2495.
66
decree “[a]t least they will avoid further litigation and perhaps will negotiate a decree providing
more than what would have been ordered without the local government’s consent”); Local No.
93, 478 U.S. at 522 (“Consent decrees are entered into by parties to a case after careful
negotiation has produced agreement on their precise terms. The parties waive their right to
litigate the issues involved in the case and thus save themselves the time, expense, and inevitable
risk of litigation. Naturally, the agreement reached normally embodies a compromise; in
exchange for the saving of cost and elimination of risk, the parties each give up something they
might have won had they proceeded with the litigation.” (quoting United States v. Armour &
Co., 402 U.S. 673, 681 (1971)); see also LaShawn, 2010 WL 1270202, at *12-*13.
In addition, federal district courts retain the power to enforce consent decrees in
institutional reform cases. A consent decree “‘embodies an agreement of the parties’ and is also
‘an agreement that the parties desire and expect will be reflected in, and be enforceable as, a
judicial decree that is subject to the rules generally applicable to other judgments and decrees.’”
See Frew, 540 U.S. at 437 (quoting Rufo, 502 U.S. at 378.) “Federal courts are not reduced to
approving consent decrees and hoping for compliance. Once entered, a consent decree may be
enforced.” Id. at 440.39
39
As noted by the Supreme Court in Local No. 93:
Parties may choose to settle their disputes by consent decree rather than by
private contract for a number of reasons. As one commentator points out, [p]ublic
law settlements are often complicated documents designed to be carried out over
a period of years, . . . so any purely out-of-court settlement would suffer the
decisive handicap of not being subject to continuing oversight and interpretation
by the court. . . . A consent decree has several other advantages as a means of
settling litigation. It is easier to obtain enforcement of a consent decree because it
will be unnecessary to prove many facts that would otherwise have to be shown in
order to establish the validity of an ordinary contract. A court that maintains
67
Because Horne did not involve a consent decree, it had no occasion to address
defendants’ claim that all they have to do is satisfy the constitutional minimum as opposed to
provisions of a consent decree that arguably exceed the minimum but were agreed to by the
parties to cure conditions that flow from constitutional violations. But this very claim was
addressed and rejected in Rufo. There, the Supreme Court made clear that where there is a
consent decree in place, the legally enforceable obligations are “not confined to meeting minimal
constitutional requirements.” Rufo, 502 U.S. at 390. Moreover, “[a] proposed modification
should not strive to rewrite a consent decree so that it conforms to the constitutional floor,” Rufo,
502 U.S. at 391, and a party cannot “require a court to retrace old legal ground, say, by
re-making or rejustifying its original ‘constitutional decision every time an effort [is] made to
enforce or modify’” an order. Horne, 129 S. Ct. at 2619 (quoting Rufo, 502 U.S. at 389-390,
392); see also LaShawn, 2010 WL 1270202, at *11-*13.
Despite this binding precedent, defendants cite to a number of cases decided since Horne
where courts have vacated consent decrees. (See Defs.’ Reply at 6 & n.9; Defs.’ Notice of
Supplemental Authority, Dec. 9, 2009; Defs.’ Notice of Supplemental Authority, Mar. 30, 2010).
However, none of the cited cases is analogous to our case, for, in each of them, there were
compelling circumstances that supported the termination of the consent decree that are not
continuing jurisdiction over a consent decree will have a more flexible repertoire
of enforcement measures. And it is likely to be easier to channel litigation
concerning the validity and implications of a consent decree into a single
forum-the court that entered the decree-thus avoiding the waste of resources and
the risk of inconsistent or conflicting obligations. . . . For all of these reasons,
consent decrees have become widely used as devices to facilitate settlement.
478 U.S. at 524 n.13 (quotations and citations omitted).
68
present here.
In three of the four cases, defendants were found to be in full compliance with the
consent decree. In United States v. Board of Education of the City of Chicago, 663 F. Supp. 2d
649 (N.D. Ill. 2009), the district court terminated a consent decree that addressed segregation in
the Chicago school system based on its determination that defendants had complied in good faith
with the consent decree and court orders over a reasonable period of time, had eliminated all
vestiges of segregation to the extent practicable, and had demonstrated its good faith
commitment to the constitutional rights that were the predicate for intervention. Id. at 654, 660-
62. Similarly, in Consumer Advisory Board v. Harvey, No. 91-CV-321-P-S, 2010 WL 1037593(D. Me. Mar 19, 2010), defendants had “achieved substantial compliance” with the consent
decree by meeting the benchmarks set forth in the decree itself. Id. at *3.40 Finally, in Basel v.
Bielaczyz, No. 74-40135-BC, 2009 WL 2843906 (E.D. Mich. Sept. 1, 2009), the court vacated a
consent judgment that was entered to correct the substantial backlog of hearing requests before a
state agency after noting that “[i]n the years closely following entry of the consent judgment,
there is no suggestion on the docket or by the parties that Defendants were ever held in contempt
based on a failure to comply with the consent judgment. . . . The terms of the consent judgment
and the history of apparent compliance suggest that the consent judgment served its purpose, and
at some point, the need for the injunction passed .” Id. at *7.
In contrast, defendants here have a proven 30-year history of noncompliance. And, in
40
Notably, Clarence Sundram was the Special Master in Harvey, which had a similar
factual history to our case. One key difference, though, is that in his final report to the district
court, Special Master Sundram concluded that the defendants were in compliance and the time
was ripe for a Rule 60(b)(5) motion to vacate the consent decree. See Final Report of the Special
Master, Harvey, 2009 WL 5792159, at *11-*12.
69
fact, based on the representations of defense counsel at oral argument, there is a serious question
as to whether defendants are even trying to comply with these orders.41
The fourth post-Horne case cited by defendants is also inapposite. In Cleveland Fire
Fighters for Fair Hiring Practices v City of Cleveland, No. 1:00-CV-301, 2009 WL 2602366(N.D. Ohio Aug. 20, 2009), the district court denied a Rule 60(b)(5) motion to extend the term of
a consent decree that had been entered in 1975 to address discrimination in the hiring practices
of the Cleveland Fire Department. Id. at *3, *16. The court declined to extend the decree
because if found that (1) defendant City has “extended its best efforts to achieve the hiring
goals” in the decree; (2) all parties used their best efforts to produce dynamic change; (3)
“changes relating to, among other things, this nation’s declining economy have taken place,
41
As explained by defense counsel:
MS. EFROS: I think what matters is, looking at it today, this is not something that
this administration embraces. It is not something that this administration
necessarily needs to embrace.
THE COURT: It does as long as the orders exist. I’m sorry to tell you that. You
may not like to embrace it happily, but there are Court orders out there.
MS. EFROS: That is the purpose of our motion today.
THE COURT: Sure.
MS. EFROS: If you deny our motion, then we’re left with an appeal or
conforming to the Court order. But the very purpose of our motion today is to say
that these orders should be vacated.
THE COURT: Yes. But until and unless they are, you are, I hope, agreeing they
bind you?
MS. EFROS: Until they are vacated, we are not consciously ignoring any Court
order.
THE COURT: Well, that’s not much of a consolation. All you are saying is you
are not intentionally committing contempt of Court.
(12/17/09 Tr. at 20-21.)
70
which could not have been anticipated at the time the [decree] was entered into” – and (4)
“circumstances were . . .
unforeseen and, hence, despite a good faith effort, the City has not satisfied the goals” in the
decree. Id. at *13-*14. The court therefore concluded that “[t]he evidence demonstrates that it
was not the City’s lack of effort, but rather circumstances beyond its control, that resulted in it
falling short of satisfying the goals in the [decree].” Id. at *16. Not only was Cleveland Fire
Fighters in a different procedural posture because movants were seeking to extend a decree past
an already established termination date, but unlike Cleveland Fire Fighters, the record before the
Court does not support a finding that defendants have “extended [their] best efforts” to satisfy
the obligations in the consent orders or that there are “circumstances beyond its control” that
have caused it to fall short.42 To the contrary, defendants freely admit that they are determined to
seek vacatur and not compliance.43
42
While defendants refer to the obligations imposed on the District as having become ever
more “exacting and onerous” (Defs.’ Mot. to Vacate at 2), it is unclear whether defendants argue
that any circumstance or obstacle makes the decree “unworkable” or “substantially more
onerous.” Rufo, 502 U.S. at 384; see also NLRB v. Harris Teeter Supermarkets, 215 F.3d 32, 36
(D.C. Cir. 2000) (“Compliance over an extended period of time is not in and of itself sufficient
to warrant relief. . . . [P]arties who have successfully sought modification have also established
events or changed circumstances which ‘make compliance with the decree substantially more
onerous,’ make the decree ‘unworkable because of unforeseen obstacles,’ or make ‘enforcement
[of the decree] detrimental to the public interest.’”). But of course, Rufo teaches that “[i]nternal
compliance mechanisms instituted to effectuate the decree . . . and hurdles inherent in a consent
decree’s entry do not count as ‘obstacles.’” Harris Teeter Supermarkets, 215 F.3d at 35-36
(citing Rufo, 502 U.S. at 391). Moreover, other than a reference to the District’s financial
situation (see infra note 43), defendants, as in LaShawn, 2010 WL 1270202, at *14, provide no
substance to their conclusory claim that the consent decrees and 2001 Plan should be viewed as
“exacting and onerous.”
43
Defendants also argue in passing that the Court must take account of the District’s dire
economic climate and budget shortfall of $583.5 million. (Defs.’ Mem. at 54.) But defendants
do not complain about the costs of providing services to the class members, but rather they want
71
Indeed, what the courts did in these cases is similar to the analysis courts engaged in
before Horne, which was, in considering whether the objects of a consent decree had been met,
to look to whether defendants had in good faith complied with the decree. For example, in
Board of Education v. Dowell, 498 U.S. 237 (1991), the Supreme Court remanded with
instructions to the district court to decide “whether the [defendant] had complied in good faith
with the desegregation decree since it was entered, and whether the vestiges of past
to be relieved of the costs associated with the Special Masters, the Court Monitor, the Quality
Trust, and the attorneys’ fees incurred in litigating this case. (Id. at 55.) While “[f]inancial
constraints may not be used to justify the creation or perpetuation of constitutional violations, . .
. they are a legitimate concern of government defendants in institutional reform litigation and
therefore are appropriately considered in tailoring a consent decree modification.” Rufo, 502
U.S. at 592-93. However, in this case, as in LaShawn, 2010 WL 1270202, at *14, defendants
have failed to demonstrate that financial circumstances warrant modification.
Most importantly, the District’s lengthy history of intransigence and noncompliance have
been the major factors in the increased need for monitoring, reliance on Special Masters, and the
large costs and fees incurred by plaintiffs and their counsel. Second, the funding of the Quality
Trust has almost been completed and is arguably not within the Court’s power to modify; the
responsibilities of the Special Masters have declined; and the Monitor returned over $180,000 of
her budget in an effort to reduce costs. (12/17/09 Tr. at 115.) Third, this litigation has actually
resulted in cost savings for the District, since as a result of the efforts of the Court, the plaintiffs,
and the Special Masters, many class members and DDA customers have been put on the waiver,
thereby shifting costs from the District to the federal government. (Id. at 27-28.) This effort,
while now reaching fruition (see supra pp. 57-58), was started long before this administration
and thus can hardly be credited only to the efforts of the current leadership. Fourth, as Judge
Hogan held, the costs of monitoring are not properly considered to be obstacles. LaShawn, 2010
WL 1270202, at *14 (citing Agostini, 521 U.S. at 216 (holding that anticipated costs of
compliance with an injunctive order are not changed circumstances under Rufo)). Fifth,
defendants do not address the impact from the three-year multi-million dollar grant the District
received from CMS in July 2008 via its “Money Follows the Person Rebalancing Demonstration
Program” (Defs.’ Mem. at 27) or the “Medicaid Infrastructure Grant,” that was “awarded to
DHCF by CMS to improve the DDA’s day and vocational service system.” (Defs.’ Mem. re
Alternate Remedy at 7.) Finally, if financial concerns are truly a problem, it is incumbent on the
District to propose a specific modification for addressing the shortfall, as opposed to advocating
for wholesale dismissal of the case so that the District can escape future court supervision and
independent monitoring.
72
discrimination had been eliminated to the extent practicable.” Id. at 249-50. Similarly, in
Labor/Community Strategy Center v. Los Angeles County Metropolitan Transportation
Authority, 564 F.3d 1115 (9th Cir. 2009), the court affirmed the district court’s decision not to
extend a consent decree addressing the day-to-day operations of the Los Angeles County bus
system because “the evidence presented supported the district court’s finding that the
imperfections with respect to load factor targets were de minimis in relation to the overall
scheme of things.” Id. at 1123. And, in McDonald v. Bowersox, No. 89-1086 C(2), 1995 WL
17013058 (E.D. Mo. Sep 18, 1995), aff’d, McDonald v. Carnahan, 109 F.3d 1319, 1321-22 (8th
Cir. 1997), the district court dissolved a consent decree regulating day-to-day life on death row,
describing the critical question as whether “the underlying constitutional rights addressed
through the decree are ensured through defendants’ compliance with the decree’s provisions in
good faith for a reasonable period of time.” Id. at *3.
In none of these cases is there support for defendants’ novel proposition that they can
attain the objects of the consent orders without complying with their terms as long as they meet
some ill-defined “constitutional minimum.” See LaShawn, 2010 WL 1270202, at *20-*21;
Johnson v. Sheldon, No. 8:87-CV-369, 2009 WL 3231226, at *7 (M.D. Fla. Sept. 30, 2009)
(declining to vacate a consent decree despite defendant’s “substantial compliance” and
“sweeping modifications and improvements to the community mental health system” where
decree specified exit criteria, which defendant had not yet fully satisfied); R.C. v. Walley, 475 F.
Supp. 2d 1118, 1123 (M.D. Ala. 2007) (“termination of consent decree is not appropriate unless
the decree’s purposes have been fully achieved”) (citation and internal quotation marks omitted).
Nor does Horne support this proposition.
73
Unlike Horne, this case involves a thirty-year series of consent orders whereby the
District committed itself to take certain actions to remedy the violations of plaintiffs’
constitutional rights. These consent orders are what gives content to otherwise vague rights and
substance to a remedy when those rights are violated.44 Moreover, as the Supreme Court has
recognized, consent decrees are a valuable tool for resolving litigation – with benefits to
plaintiffs, defendants and the courts. But if the Court were to permit defendants to walk away
from their obligations under the consent orders simply because there is a new administration that
believes that all it needs to do is achieve the constitutional floor (whatever that means), that
would mean that there would be no future consent decrees involving governmental entities.
Plaintiffs would have no incentive to enter into consent decrees if the next administration could
attack a prior administration’s agreement by saying it promised more than was required. And,
courts would be unlikely to approve a consent decree if each new administration could force a
retrial based on a claim that the constitutional floor has now been met. While Horne may have
provided parameters for court involvement in institutional reform litigation and consent decrees,
it did not declare their demise. In light of the continued vitality of Rufo and Frew, and as long as
the obligations voluntarily assumed by defendants flow from constitutional violations, this Court
may not rewrite the existing consent orders so as to reduce defendants’ promise to some ill-
defined constitutional floor. See Rufo, 502 U.S. at 391; LaShawn, 2010 WL 1270202, at *21.
Accordingly, as defendants concede they are not in compliance with the court orders, they have
not satisfied Horne’s first requirement of showing that the object of the consent orders has been
44
(See Pls.’ Opp’n, Ex. 27 (charting flow of orders, starting with the rights recognized in
the 1978 Consent Order and then identifying the remedial actions defendants were ordered to
take to remedy the violations of those rights).)
74
attained.
B. Defendants Have Not Yet Implemented a “Durable Remedy”
Nor have defendants satisfied Horne’s second requirement of showing that a “durable
remedy” has been implemented. 129 S. Ct. at 2595. What it means to have a “durable remedy”
is a question that Horne does not answer, but at a minimum, a “durable” remedy means a remedy
that gives the Court confidence that defendants will not resume their violations of plaintiffs’
constitutional rights once judicial oversight ends. See LaShawn, 2010 WL 1270202, at *21;
Harvey, 2009 WL 5792159, at *11 (suggesting that a “durable remedy” is the equivalent of
having in place “a mechanism for future compliance”). Whether there is a durable remedy thus
necessarily depends on the actual impacts or outcomes experienced by the plaintiffs. The Court
has to be persuaded that defendants are no longer violating plaintiffs’ constitutional rights and
that they will “not return to [their] former ways.” Dowell, 498 U.S. at 247-48. As was the case
in LaShawn, 2010 WL 1270202, at *22, defendants ask the Court to conclude that it has a
durable remedy in place because it has implemented permanent structural changes and will
remain subject to extensive monitoring even without judicial involvement.
1. Permanent Structural Changes
Defendants focus on the following permanent structural changes: (1) the establishment
of the Department on Disability Services (“DDS”) as a cabinet-level department with
independent personnel and procurement authority;45 (2) the creation of the Department of Health
45
Defendants also refer to the fact that “the District has recruited high-quality and
dedicated leadership for the new agency” (Defs.’ Mem. at 38), which is clearly an important
development in this case given the often inadequate and transitory nature of management over
the last 30 years. However, as defense counsel conceded during argument, a “durable” remedy
cannot depend on the retention of particular personnel. (12/17/09 Tr. at 29 (“I don’t think it does
75
Care Finance (“DHCF”) as an independent, cabinet-level agency that functions as the single-
state Medicaid agency with two (to increase to four) staff dedicated to persons with
developmental disabilities; (3) increased interagency cooperation between DDS/DDA and
DHCF, including routine weekly telephone calls, staff co-location and extensive collaboration on
a number of ongoing projects; (4) increased interagency collaboration between DDS/DDA and
the Health Regulation and Licensing Administration (“HRLA”), including sharing findings and
conducting joint investigations; and (5) the establishment in July 2009 of a Task Force including
representatives from DDS/DDA, DHCF, and HRLA to advise the Mayor regarding all services
for individuals with developmental disabilities. (Defs.’ Mem. at 37-43.)
These structural changes are all extremely positive developments, but they do not
necessarily translate into proof of a durable remedy.46 All of the changes have occurred within
the past year or two, and, especially in view of the fact that this litigation has spanned over 30
years and still defendants achieved compliance, it is simply too soon to tell whether they will
result in improved outcomes for the plaintiffs, and, if so, whether the improvements will be
sustained absent judicial involvement. Even defendants admit that systemic change can take
three to five years.47 (Defs.’ Mem.’ at 70; Defs.’ Mem., Ex. 16, Expert Report of Nancy Thaler,
depend on Ms. Nuss staying, although we certainly want Ms. Nuss to stay”).) Indeed,
defendants’ recent filing suggests that if the Court imposes the remedy recommended in the 2009
Special Masters’ Report, Ms. Nuss will decline to remain in her job. (See Defs.’ Mem. re
Alternate Remedy at 3-8.)
46
Similar arguments were raised by the District and rejected by LaShawn, 2010 WL
1270202, at *13-*14 and by the D.C. Circuit in Harris Teeter, 215 F.3d at 36, where the Court
refused to terminate a consent decree even though defendant had instituted personnel changes
and an internal reorganization.
47
Even in their latest filing, defendants acknowledges that there are
76
July 14, 2008 (“In no state have problems been solved over night. The full transformation of a
system – the building of structure and processes and the appointment of strong leaders to manage
the way it all works together – takes several years. Three to five years is the standard time frame
assumed to be necessary to turn a system around. Progress, that is evidence of the effort to
change things, becomes evident only over time.”); see also 12/11/08 Trial Tr. at 353 (Test. of
Laura Nuss) (“you don’t see the outcomes that you want to see as fast as you would like to see
them. You know, this is a historically plagued service system. So I think it is taking time to see
the outcomes. But, you know, we still see the bad outcomes for individual issues. But we’re also
seeing a lot of positive ones”).
Moreover, with respect to interagency coordination and collaboration, there have been
improvements, but the District’s performance has been less than consistent given the problems in
this area as recently as December 2008. (See 2009 Special Masters’ Report at 129 (“Time has
shown that the problems with interagency coordination persist under the Fenty Administration as
they had under the previous administration, and have resulted in the same sub-standard
conditions, lack of necessary medical care, as well as inappropriate and ineffective day
programs.”).) For example, defendants’ expert, Nancy Thaler, concluded that it was a failure in
interagency communication that caused “[t]he recent decision made by MAA to change the
remaining systemic weaknesses specific to the District’s IDD system: access to
high-quality behavioral health services; clinical services, including physical
therapy (PT), occupational therapy (OT), speech therapy (SPL), and nutrition
services; and transformation of the legacy facility-based day services to
person-centered habilitation and vocational-preparation programs that provide
quality habilitative, vocational and community-integrated services appropriate to
each consumer’s needs and preferences.
(Defs.’ Mem. re Alternate Remedy at 11-12.)
77
Medical Assistance transportation arrangements [to have] a negative impact on the consumers in
the DDA program by limiting their capacity to travel to medical and other appointments.”
(Defs.’ Mem., Ex. 16, Addendum to Expert Report of Nancy Thaler at 11-12, Oct. 7, 2008.)
Similarly, as of December 2008, there continued to be problems with obtaining guardianships in
a timely fashion. (2009 Special Masters’ Report at 45, 49 (“The delays in obtaining
guardianship for the provision of informed consent for medical and dental treatment of class
members . . . have continued in the compliance period,” leading to defendants continued inability
“to provide class members with medical treatment and health care that is timely, particularly for
class members who have acute medical needs.”).)
2. Monitoring
The second part of defendants’ durable remedy argument is their claim that their
performance is subject to extensive monitoring, including monitoring by the Superior Court, the
Center for Medicare and Medicaid Services (“CMS”), the Quality Trust, and the District’s
internal monitoring by the Health Regulation and Licensing Administration (“HRLA”) and the
four units of DDA’s Quality Management Division – Health and Wellness, Quality Enhancement
and Quality Improvement, Incident Management and Enforcement, and Mortality Review.
Unfortunately, there are a number of problems with defendants’ contention that this monitoring
is proof of a durable remedy.
i. Superior Court – As described by defendants, the Superior Court for the
District of Columbia plays a significant role in overseeing plaintiffs.48 However, the Superior
48
According to defendants,
any person brought before the Court (to be admitted or committed to DDS/DDA)
78
Court’s authority is limited to treatment decisions about individual class members, and although
this system has been in place since 1979,49 significant systemic reforms have not been achieved.
Moreover, proposed legislation may signification alter the role of the Superior Court. See D.C.
Council, B18-0501, Developmental Disabilities Reform Act of 2009 (introduced Oct. 20, 2009).
Thus, although Superior Court reviews individual cases and does play an important role, its job
is limited and in light of the pending legislation, the Court can hardly count on its continued
involvement.
ii. CMS – According to defendants, CMS, the federal agency that administers the
Medicare and Medicaid programs, “already provides extensive oversight for services provided
by DDS/DDA.” (Defs.’ Mem. at 44.) For example, the District must submit an annual report to
CMS that addresses both fiscal and quality performance measures, and CMS conducts
“unannounced random audits on various areas of its six assurances, including level of care,
service plan, qualified providers, health and welfare, administrative oversight, and financial
accountability.” (Id. (citing Nuss. Decl. ¶ 4, Oct. 7, 2009) (Ex. 4 to Defs.’ Mem.).) In addition,
has a right to be represented by retained or appointed counsel. See SCR-MRP 11;
see also D.C OFFICIAL CODE § 7-1304.12(2) (authorizing fees to be a paid to
appointed counsel). Moreover, any interested party has the right to initiate an
action in Superior Court to compel DDS to accord persons with IDD the rights
afforded them under District law. D.C OFFICIAL CODE § 7-1305.13(a).
Indeed, each person committed to DDS/DDA supervision is entitled to an annual
judicial hearing to determine whether the person has “benefitted from . . .
habilitation.” Id. at § 1304.11(a)(1). These procedures conclusively demonstrate
that members of the Evans class have an adequate remedy at law for any potential
future failure by the District to provide them with appropriate treatment.
(Defs.’ Mem. at 43-44.)
49
See The Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978,
effective March 3, 1979 (D.C. Law 2-137; D.C. Official Code § 7-1301.02 33 et seq.).
79
according to defendants, “CMS will be initiating expanded . . . quality-reporting in the next
fiscal year that mirrors the expanded quality management requirements now found in the HCBS
waiver program.” (Id.) Finally, defendants assert that:
From February 2007 to March 2009, CMS engaged in even more intensive
monitoring to ensure the then-MAA and DDS/DDA’s compliance with the federal
HCBS waiver requirements. This included monthly written and telephonic
monitoring of a corrective action plan in three of the six assurances: Plan of Care;
Health and Welfare; and Administrative Oversight. In March 2009, however,
CMS determined that the District had “made major changes in the performance,
structure, oversight mechanism, and systems sufficient enough to engage in
continuous Quality Improvement (QI).” To qualify for such a finding, a state
must demonstrate a robust system of “discovery, remediation and improvement”
in all six assurances. Citing the “demonstrated effectiveness of the many newly
implemented systems to meet the CMS quality requirements,” CMS discontinued
its intensified monitoring.
(Defs.’ Mem. at 45 (quoting and citing CMS Letter, March 9, 2009 (Ex. 19 to Defs.’ Mem.).)50
Plaintiff responds that the CMS monitoring “is irrelevant . . . [because] CMS monitors all states
that participate in the federal Medicaid program. All such states are required to file the type of
annual reports that the defendants reference.” (Pls.’ Opp’n at 82.) But more importantly, CMS
does not perform regular on-site audits to determine the quality of care provided to class
members and other DDA consumers. According to the DOJ counsel who represents plaintiff-
intervenors, the District conducts the on-site reviews of community placements and the regional
office of CMS, “as part of their quality review that occurs every five years, . . . requests evidence
from the District that it is meeting all the statutory and regulatory assurances required for CMS.”
(12/18/09 Tr. at 195.) Given CMS’ limited role in conducting on-site visits so that it can assess
50
Of course, prior to CMS issuing its Letter of March 9, 2009, the District had been put
on a “corrective action plan” – a program of intensified monitoring – due to the fact that the
District failed to substantially meet three of the six waiver assurances. (Defs. Mem., Ex. 19; see
also Court Monitor Rep. at 27, Jan. 26, 2007.)
80
the impact of the systems on class members, the Court can take little solace from the increased
role of CMS, which is a recent development that will not begin until sometime this year and will
be a far cry from the type of monitoring that has any direct impact on the day-to-day lives of the
plaintiffs.
iii. Quality Trust – As part of the 2001 Plan and as part of the settlement of the
Evans litigation, the Quality Trust was established in 2001 as an quasi-independent entity tasked
with providing “monitoring, legal services and lay advocacy services for consumers in the
District of Columbia.” (2001 Plan at 45 (footnote omitted).) As part of its function, the Quality
Trust was to monitor services being provided to the over 1400 non-class members and would
eventually take over from the Court Monitor the job of monitoring the Evans class members.
(Id. at 46; see also supra pp. 13-15.) Specifically, the Quality Trust is tasked with developing
and implementing an annual monitoring plan with input from all stakeholders; reviewing all
reports and investigations of serious incidents involving DDS consumers; issuing annual reports;
and reviewing and providing input regarding DDS budgeting information. (2001 Plan at 47-48.)
However, although defendants point to the Quality Trust as an important monitoring component,
the Quality Trust has informed the Court in its most recent filing that the “proposal to transition
the monitoring function solely to Quality Trust is premature.” (Quality Trust Opp’n at 21; see
also id. at 27 (“When adequate structures are in place, and an opportunity for meaningful
transition from the Court Monitor has occurred, Quality Trust will be able to assume
post-litigation monitoring of the Evans class members along with its current monitoring
function.”).) The Quality Trust estimates that it will take 12-18 months “to have a meaningful
transition.” (12/17/09 Tr. at 140.) Given this assessment, the Court cannot yet look to the
81
Quality Trust to support defendants’ durable remedy argument.51
iv. Internal DDS Quality Assurance System – According to defendants,
“internal monitoring methods will ensure that it sustains the extensive reforms now in place.”
(Defs.’ Mem. at 48). Within the Developmental Disabilities Administration, the Quality
Management Division (“QMD”) “monitors all aspects of the service-delivery system to ensure
compliance with federal and local law, national best practices, and applicable court orders.” (Id.
(quoting 10/7/09 Nuss Decl. ¶ 51).) The QMD is divided into four functional units: Health and
Wellness, Quality Enhancement and Quality Improvement (“QE/QI”), Incident Management and
Enforcement (“IMEU”), and Mortality Review. (Defs.’ Mem. at 48-50 (quoting 10/7/09 Nuss
Decl. ¶ 52).)
While improvements in internal monitoring are critical to the existence of a durable
remedy, over the lengthy history of this case, defendants’ monitoring has been woefully
inadequate both in terms of the quality and speed of internal investigations of both deaths and
serious incidents involving class members and DDA consumers. This problem has continued
through 2009. (See, e.g., Quarterly Report of the Court Monitor at 7, December 10, 2009;
Quality Trust for Individuals with Disabilities Monitoring Unit Annual Report and Data
Summary at 1, Oct. 1, 2008 – Sept. 30, 2009 (concluding that “progress in improving the
systems and supports for people with developmental disabilities in the District of Columbia is
51
The District’s proposed alternate remedy, set forth in a motion filed just days ago (see
supra note 2), the Quality Trust’s responsibility for on-the-ground monitoring appears to have
shrunk and it is now described as an “active[] members of oversight committees that review
findings generated by these systems and initiatives and contribute to recommendations for
improvements going forward.” (Defs.’ Mem. re Alternate Remedy at 13.) Obviously, if its
remedy were to be adopted, the Quality Trust’s role (despite the District’s obligation to fund it
with over $30 million) would be reduced to “ad hoc monitoring.” (Id., Ex. A at 7.)
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mixed. . . . A more consistent and transparent process for investigating Serious Reportable
Incidents at DA is also necessary . . . . Our data indicates that investigation reports are not being
completed consistent with policy.)
The flaws in the District’s internal monitoring also became apparent recently when the
District had to put into receivership one of its largest providers, Individual Development, Inc.
(“IDI”). While the District touts this action as an example of “[t]he new institutional culture and
collaborative ethos” of officials from DDA, DHCF, and HRLA (Defs.’ Mem. re Alternate
Remedy at 5), what it conveniently fails to disclose is that many of the problems with this
provider that led to the receivership were uncovered by the Court Monitor and reported by the
Court Monitor and the plaintiffs, not by the District’s internal monitoring apparatus. (See
12/18/09 Tr. at 239.)
In sum, defendants have not demonstrated a durable remedy as required by Horne.
While it is true that the District has made significant strides in the last year or two under new
leadership, the Court does not have confidence that the agency’s progress is durable and self-
sustaining. Accord LaShawn, 2010 WL 1270202, at *21-*22. As documented by the 2009
Special Masters’ Report, the three most recent Court Monitor Reports and the 2009 Quality
Trust’s Monitoring Unit Annual Report and Data Summary, results are, at best, uneven, and it is
far too soon to determine whether the structural changes, some of which are still in the
implementation phase, will have the desired impacts on the safety, health and welfare of the class
members.
CONCLUSION
In 1978, the parties agreed, and the Court endorsed that agreement in an Order and
Judgment, that plaintiffs had certain constitutional rights, that those rights had been violated, and
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that to remedy those violations, defendants would have to take certain remedial actions. More
than 30 years later, defendants ask the Court to relieve them of those obligations under Rule
60(b)(5) on the grounds that enforcing those promises prospectively is no longer equitable.
While defendants certainly have the right to file a 60(b)(5) motion, they have the burden to
justify their motion. Defendants have failed: the objectives of the original consent decree and
subsequent court orders, as incorporated in the 2001 Plan, have not been achieved and
defendants have not demonstrated that the prospective enforcement of the court orders would be
inequitable or “detrimental to the public interest.” Horne, 129 S. Ct. at 2593. Accordingly,
defendants’ motion for vacatur and dismissal will be DENIED.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: April 7, 2010.
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